[glQjTjgDfrinJlriJiJfrLrQffinlfrinlfrOi^ 


i 
1 

1 
i 
i 


THE  LIBRARIES 


COLUMBIA  UNIVERSITY 


HEALTH  SCIENCES 
LIBRARY 


i 
1 
1 
1 
1 
1 
1 

1 
1 

i 


Effug|?ugfilriiirinilrLrgf?uilfii^ 


r4^^i:V: 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Open  Knowledge  Commons 


http://www.archive.org/details/civilmalpracticOOmccl 


CIVIL  MALPRACTICE: 


A  TREATISE  ON 


SURGICAL  JURISPRUDENCE. 


WITH  CHAPTERS  ON 


SKILL  IN  DIAGNOSIS  AND  TREATMENT,  PROGNOSIS 
IN  FRACTURES,  AND  ON  NEGLIGENCE. 


MiLo  A.  McClelland,  m.d. 


Men  see  clearly,  like  oiols,  in  the  nig/ii  of  their  own  notions,  but  in 
experience,  ns  in  daylight,  they  wink  and  are  but  half-sighted.  —  Bacon. 

Deep  science  is  desirable  to  the  inan  of  fortune — useful  science  to  the 
physiciaii  and  surgeon.  —  SiR  Astley  Cooper. 

The  first  step  toward  improvement  in  any  art  or  science,  must  be  the 
faithful  exposure  of  its  wants  and  deficiencies.  —  Prof.  Hamilton. 

Professional  employment  is  not  only  recognized  as  a  legitimate  and 
substantial  business  of  life,  but  it  is  regulated  by  fixed  rules  to  ensure  due 
diligence  and  skill  and  its  appropriate  reward.  —  Smith  v.  Hill,  13  Ark. 
R.  i73. 


NEW  YORK : 

PUBLISHED   BY   HURD  AND    HOUGHTON. 

BOSTON:    H.  O.  HOUGHTON  &   COMPANY. 

€amt»:itige :  Clje  ilitjei'^itie  ^tt00. 

1877. 


t 


Copyright,  1877, 

By  milo  a.  McClelland. 


The  Riverside  Press,  Cambridge : 

PBINTED  BT  H.  0.  HOUGHTON  AND  COMPANT. 


TO 
MY    ESTEEMED    TEACHER   IN   SURGERY, 

FRANK   H.  HAMILTON,  M.  D., 

SURGEON   TO   BELLEVOE   HOSPITAL,   NEW   YORK, 

AS    A    SLIGHT    ACKNOWLEDGMENT    OF    THE    MANY    BENEFITS    DERIVED 

FROM   HIS   TEACHING    AND   PUBLISHED   WRITINGS, 

ESPECIALLY    THOSE    ON 

FRACTURES  AND  DISLOCATIONS, 

AND    IN    GRATEFUL    REMEMBRANCE    OP    THE    INTEREST 
HE    HAS    TAKEN    IN    THIS    WORK, 


MADISON  REECE,  M.  D., 

OF  ABINGDON,"  ILLINOIS, 

THE    PERSONAL    FRIEND,   WHOSE    ATTAINMENTS    IN    MEDICINE   ARE   ONLY 

EQUALLED    BY    HIS    COURTESY    TO    PROFESSIONAL    BRETHREN,    THIS 

ATTEMPT  AT    USEFULNESS    IN  AN    IMPORTANT    BRANCH    OF 

MEDICAL   JURISPRUDENCE, 

IS  RESPECTFULLY  INSCRIBED. 

M.  A.  M. 


INTRODUCTION. 


The  very  favorable  reception  of  a  Report  on  Civil  Mal- 
practice, made  to  the  Military  Tract  Medical  Society  in  1873, 
encouraged  me  to  continue  collecting  material  for  a  more 
extended  work  on  the  same  subject,  should  it  ever  be  called 
for.  From  the  increasing  frequency  of  suits,  for  alleged  neg- 
ligence and  want  of  skill  on  the  part  of  physicians,  especially 
in  the  West,  it  seems  that  such  a  compilation  is  now  needed. 
Originality  is  claimed  only  for  the  selection  and  arrangement 
of  the  material..  The  work,  I  trust,  will  be  a  useful  one, 
inasmuch  as  the  Supreme  Court  decisions,  upon  this  feature 
of  the  doctrine  of  Bailments,  scattered  as  they  are  through 
numerous  state  Reports,  are  inaccessible  to  most  legal  and 
medical  practitioners.  These  decisions  I  have  collected  and 
grouped  according  to  their  medical  rather  than  their  legal 
interconnection.  By  aid  of  the  index,  however,  the  legal 
principles  may  be  readily  referred  to.  Some  of  the  decisions 
I  have  introduced  by  an  abstract  of  the  evidence  presented 
at  the  first  trial.  There  will  also  be  found  the  history  and 
abstract  of  evidence  in  numerous  other  cases,  not  taken  to 
appellate  courts,  many  of  which  have  not  been,  heretofore,  so 
pubhshed  as  to  be  accessible  to  either  the  medical  or  legal 
professions.  These  might  well  have  been  omitted,  having  no 
authority   in  law,  but  the  questions  involved  in   them    are 


VI  INTRODUCTION. 

likely  to  arise  again,  and  they  will  show,  to  some  extent,  how 
such  cases  are  disposed  of  by  courts  and  juries.  Especial 
care  has  been  taken  to  report  the  cases  faithfully  and  accu- 
rately. In  the  abstracts  of  evidence  in  the  Nisi  Prius  cases, 
only  the  salient  points  are  given ;  the  spirit,  not  always  the 
exact  language,  is  aimed  at.  As  such  I  respectfully  submit 
it  to  the  kind  consideration  of  lawyers  and  physicians.  If 
legal  gentlemen  should  observe  any  diversity  of  opinion 
among  the  so-called  "  expert "  witnesses  in  these  cases,  they 
should  remember  what  Lord  Coke  said  in  respect  to  the  same 
question  in  their  own  profession,  that  it  is  "  Hominis  vitium 
non  professionisJ^  As  yet  we  have  no  court  of  ultimate  ap- 
peal, in  Medicine,  hence  unanimity  in  opinion  is  not  at  all  to 
be  looked  for. 

In  the  Chapters  on  Diagnosis  and  Treatment,  I  have  done 
what  it  would  seem  always  safe  in  courts  to  do.  I  have  laid 
standard  medical  authorities  under  contribution  for  testi- 
mony upon  the  principles  under  discussion,  rather  than  given 
my  own  opinions,  based  upon  my  recollection  of  their  testi- 
mony from  a  former  reading;  or  where  I  have  advanced 
opinions  of  my  own  I  have  quoted  them  as  confirmatory  of 
those  opinions.  This  testimony  I  have  tried  to  report  cor- 
rectly and  to  give  credit  for  whenever  due. 

The  Chapter  on  Prognosis,  with  accompanying  Tables,  will 
show  what  has  and  has  not  been  accomplished  by  treatment 
in  different  countries  and  hj  different  surgeons.  For  the  plan 
of  the  Tables  and  the  larger  number  of  the  cases  cited  therein, 
I  am  indebted  to  Professor  F.  H.  Hamilton,  who  kindly 
placed  his  labors  at  my  disposal.  How  freely  I  have  availed 
myself  of  these,  the  subsequent  pages  show.  I  present  in 
this  Chapter,  also,  Professor  Sayre's  Report  on  the  use  of 
Plaster  of  Paris  in  the  treatment  of  fractures,  with  the  ac- 


INTRODUCTION.  yU 

companying  Tables  of  Dr.  Van  Wagenen,  which  Dr.  Sayre 
thoughtfully  sent  me  in  duplicate,  thus  obviating  the  labor 
of  copying.  I  present  Dr.  Sayre's  Report  in  full,  except  his 
illustration  of  the  muscles  in  retaining  broken  fragments  in 
apposition.  I  do  this  for  the  reason  that  he  is  an  eminent 
authority  in  surgery  and  one  of  the  ablest  advocates  of  this 
form  of  dressing.  The  papers  of  Dr.  Bryant,  Med.  Record, 
Vol.  VI.  p.  313,  and  Dr.  St.  John,  Am.  Jour.  Med.  Sci.,  July, 
1872,  should  be  also  studied  in  this  connection. 

My  thanks  are  due  to  many  other  gentlemen,  both  legal 
and  medical,  for  the  interest  they  have  taken  in  the  work,  by 
furnishing  use  of  libraries.  Reports  and  Tables  of  Cases, 
Records  of  Trials,  &c. 

My  brother,  Thomas  S.  McClelland,  of  the  Chicago  Bar, 
assisted  me  in  the  compilation  of  the  Supreme  Court  decisions 
cited  herein.  For  the  statement  of  legal  principles,  except 
as  to  those  embodied  in  opinions  of  the  Courts,  I  alone  am 
responsible.  These  principles,  however,  have  been  examined 
by  several  gentlemen  of  the  legal  profession,  and  no  adverse 
criticism  having  been  offered,  I  assume  that  they  are  correct 
in  theory  —  that  is  to  say,  as  legal  propositions. 

The  Rev.  C.  W.  Leffingwell,  D.  D.,  of  St.  Mary's  School, 
Knoxville,  111.,  and  Capt.  S.  Adams  Lee,  formerly  of  the  U. 
S.  Navy,  kindly  assisted  me  in  reading  proof.  To  them  and 
all  others  who  have  encouraged  me  in  my  work,  I  extend 
my  most  cordial  thanks. 

Knoxville,  El.,  October  27,  1876. 


TABLE  OF  INJURIES. 


FRACTURES. 

Shoulder-joint. 

FAGi: 

Cater  v.  Fernald 19 

Baird  v.  Morford 33 

Tefft  V.  Wilcox 36 

Elbow-joint. 

Steele  v.  Newton .47 

Russell  V.  Wardner 52 

Lowe  i;.  McNevins 61 

Wilmot  V.  Howard 62 

Wrist-joint. 

Clapp  V.  Wood  .......     76 

Wood  V.  Clapp 76 

Noyes  v.  Allen 79 

Haskell  v.  Cross 80 

Volmuth  V.  Hathaway     ....     84 
Smothers  v.  Hanks      .     .     .     ,     .102 

Ritchey  v.  West 108 

Scudder  v.  Crosson Ill 

Femur, 

V.  Oatman 115 

Reynolds  v.  Graves 119 

Knee-joint  and  Leg. 

Gladwell  v.  Steggall 123 

Braunberger  v.  Cleis 127 

Closson  V.  Loomis  ......  145 

Brown  v.  Kendall 169 

Kendall  v.  Brown 172 

Branner  v.  Stormont 173 

Ankle-joint  and  Leg. 

Means  v.  Hallam  and  Barnes  .     .176 
Hallam  and  Barnes  v.  Means  .     .180 

Almond  v.  Nugent 187 

Slater  2;.  Baker 189 

McCandless  v.  McWha    .     .     191,  194 


PAGE 

Bellinger  v.  Craigue 196 

Gallaher  v.  Thompson    ....  201 
Leighton  v.  Sargeant .     .  203,  210,  219 

DISLOCATIONS. 

Coleman  v.  Munholland  ....  225 

Bugard  v.  Gross 227 

Seare  v.  Prentice 231 

Carpenter  v.  Blake 234 

Wenger  v.  Calder 250 

Smith  V.  Irvin 251 

AMPUTATIONS. 

Young  V.  Fullerton 253 

Alder  v.  Buckley 256 

Howard  v.  Grover 257 

OPHTHALMIC   CASES. 

McKehoe  v.  Hall 261 

Doyle  V.  Derby 269 

Courtney  v.  Henderson   ....  273 

OBSTETRIC   CASES. 

Rex  V.  Williamson 276 

Bowman  v.  Woods 277 

Grannis  v.  Branden 282 

VENESECTION. 

Hancke  v.  Hooper 289 

INTERSTITIAL   ABSORPTION. 

Haire  v.  Reese 292 

OPENING   AN   ABSCESS. 

Walsh  V.  Sayre 303 

SECONDARY   HEMORRHAGE. 

Fisher  v.  Gross 318 

GANGRENE   PROM   FROST-BITE. 

Kay  V.  Thompson 321 


TABLE  OF  INJURIES. 


AMPTJTATION   OF   BREAST. 

McClaUen  v.  Adams 331 

USING  A   BOUGIE. 

Rex  V.  Van  Butchell 334 


BATHING. 

Perionosky  v.  Ereeman  . 

VACCINATION. 

Langdon  v.  Humphrey    . 


PAGE  *  PAO« 

FELON. 

Twombly  v.  Leach 347 

ERYSIPELAS. 

Cochran  v.  Miller 350 

MEDICAL    CASES. 

Rex  V.  Long 353,  364 

Peck  V.  Martin 381 

Commonwealth  v.  Thompson  .     .  384 

Rich  V.  Pierpoint 393 

Ruddock  V.  Lowe 394 

.  344  I  Jones  v.  Fay 394 


343 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

DEFINITIONS. ETHICAL    MALPRACTICE. 

PAGE 

Ethical,  civil,  and  criminal  malpractice     . 1 

Suits  instituted,  by  whom      .........  1 

Definition  of  the  term  "  quack  " 1,6 

Sections  from  Code  of  Ethics           ........  1 

Remarkable  results  from  the  administration  of  simples    ....  2 

Mandamus  to  compel  admission  into  Medical  Society    ....  4 

"  Schools  "  in  Medicine  not  recognized  by  law          .....  4 

Statute  of  New  York  on  admission  to  Medical  Societies       ...  5 

Departure  from  regular  practice,  cause  for  non-admission        ...  .5 

Mandamus  the  appropriate  remedy  to  compel  admission       ...  7 

Code  of  Ethics  obligatory  on  membei's  only     ......  7 

Policy  of  the  law  opposed  to  summary  judgment           ....  7 

Libel,  case  of     ..... 7 

Witnesses  skilled,  may  give  what  evidence 9 

Consultation,  practice  of  physicians  in ■.14 

Code  of  Ethics  on  consultations     .........  15 

CHAPTER  II. 

CIVIL    MALPRACTICE. ALLEGED     MALPRACTICE    IN    FRACTURES    NEAR  THE 

SHOULDER-JOINT. 

Malpractice  is  either  active  or  pnssive       .......  17 

Allegations  contained  in  the  declaration 17 

The  law  on  responsibility  of  physicians  and  surgeons      .         .         .         .17 

Reasonable  or  ordinary  skill           ........  18 

Degree  of  attainment,  diploma  best  evidence 19 

All  systems  recognized  by  law  as  legitimate          .....  19 

Physician  must  practice  according  to  avowed  system        ....  19 

Injuries  about  the  shoulder  difficult  to  diagnose    .....  24 

Story  on  ordinary  diligence       .........  32 


xn  TABLE  OF  CONTENTS. 

PAGE 

Patient  must  exercise  judgment  in  selecting  physician          ...  32 
Errors  in  judgment,  in  cases  of  doubt       .        .         .         .         .         .         .32 

Diseases  influenced  by  natural  causes   .......  32 

Facts  admitted  cannot  be  denied  in  same  suit  ......  35 

Burden  of  proof     ...........  36 

Contributory  negligence    ..........  36 

Ordinary  witness  to  testify  to  facts  only        ......  37 

Measure  of  damages 39 

Hypothetical  questions,  experts  to  give  opinions  on      ...        .  40 

CHAPTER  III. 

ALLEGED   MALPRACTICE    IN   FRACTUEES   NEAR    THE    ELBOW-JOINT. 

Danger  of  initial  bandage 47 

Duty  of  professional  men      . .  52 

Adjustment  of  fractures,  right  theory  of 59 

Responsibility  of  the  physician      ........  62 

Effect  of  the  retainer 62 

Argument  of  counsel,  object  of      . 71 

Contributory  negligence 71 

CHAPTER  IV. 

ALLEGED  MALPRACTICE   IN   FKACTURES   NEAR   THE   WRIST-JOINT. 

Responsibility  of  physician  . .77,  10.3,  108 

Physicians  superseded  by  charlatans  ...         ...         .79 

Anchylosis  of  wrist  in  CoUes'  fracture 82 

Analysis  of  the  decision  in  J/cCanof/essv.  i/cPTAa           .         •         •         •  104 

Surgeon  should  make  second  visit 109 

Evidence  newly  discovered  must  be  true 110 

Burden  of  proof 112 

Contributory  negligence -         .113 

Allegations  in  pleadings  must  be  liberally  construed    .        .        .        .  114 

CHAPTER  V. 

ALLEGED  MALPRACTICE  IN  FRACTURES  OF  THE  FEMUR. 

Shortening  in  most  cases  of  fractures  inevitable 116 

Violation  of  Code  of  Ethics 119 

Danger  of  extension  in  certain  cases         .         .       _ 119 

Physician  does  not  contract  to  cure 120 

Responsibility  of  physician 120 

Who  are  physicians       .        .        . 121 


TABLE   OF  CONTENTS,  Xlll 


CHAPTER  VL 

ALLEGED   MALPRACTICE   IN   FRACTURES    NEAR    THE    KNEE   AND   IN    LEG. 

PAGH 

Actions  ex  contractu  and  ex  delicto .         .     125 

Immaterial  by  whom  physician  is  employed         .        .        .        .        .        126 
"  Shock,"  phenomena  present  in       ,         .         .         ,         .         .         .         .     131 

Amputation,  time  for     .... 132 

Implied  contract  of  physician 137 

Requirements  of  the  law 133 

Who  may  recover  for  loss  of  life 139 

Vindictive  damages,  when  may  be  given 145 

Bandages,  danger  of ,        .        .        .167 

Transverse  fractures  overlooked  by  eminent  surgeons  .        .        .        168 

Responsibility  of  surgeon .174 

Definition  of  "  reasonable  care  and  skill " 1 74 


CHAPTER  VII. 

ALLEGED    MALPRACTICE    IN   FRACTURES    NEAR   THE   ANKLE-JOINT. 

Obliquity  of  fracture  only  determined  by  a  posOnortem    .         .         .         .179 

Two  juries  finding  same  way,  verdict  will  not  be  disturbed,  except      .  180 

Surgeons  must  not  only  possess,  but  also  use  skill 184 

Corporations  and  professional  men  have  little  chance  with  juries          .  185 

Extension  not  applicable  in  fractures  of  the  leg 185 

Juries  incompetent  to  try  issues  in  science    .        .        .        ,        .        .  I86 

Medical  books  should  be  received  in  evidence 186 

"  Experience  "  overrated 186 

Responsibility  of  physicians  the  same  as  lawyers,  &c 187 

Implied  contract  of  physicians       .     '    .         .         .         .         .         .          I88  212 

Experiments  must  not  be  made 190 

Responsibility  for  gratuitous  service 193 

"  Qwa/j/icaim  "  demanded  by  the  law 194 

Retainer,  effect  of,  on  allegation  of  malpractice 202 

Angle  of  foot  in  fractures  of  the  leg 205 

Physicians  not  warrantors 211 

Physicians  not  responsible  for  errors  of  judgment 215 

Attorneys,  responsibility  of    .         .         .         .         ,        .         .         .         .  21 6 

Experts  to  give  opinions  in  evidence 219 

Physician  not  to  show  possession  of  skill 220 

Account  books  not  receivable  in  evidence 222 

Rule  of  damages     . 223 

Brandy  drunk  by  jury  during  consideration  of  verdict     ....  224 


XIV  TABLE   OF   CONTENTS. 

CHAPTER   VIII. 

ALLEGED    MALPRACTICE    IN    DISLOCATIONS. 

PAGE 

Interference  with  patients 226 

Atrophy  of  muscles  following  dislocations 226 

227 

.  227 

229 

.  234 

243 

.  246 

247 

.  249 

250 

.  251 


Dislocation  of  shoulder  apt  to  recur       ..... 

"  Botanic  "  treatment  of  dislocation  of  elbow  .... 

Method  of  reducing  backward  dislocation  of  elbow 
Ellenborough,  C.  J.,  on  responsibility  of  surgeon 
Physician  must  not  only  possess,  but  use  skill 
Release  from  attending,  if  obtained  by  fraud,  does  not  exempt 
Contributory  negligence  ....... 

Established  methods  must  not  be  departed  from 

Rule  of  damages 

Talipes  varus  following  dislocation  of  knee       .... 


CHAPTER  IX. 

ALLEGED    MALPBACTICE    IN    AMPUTATIONS. 

Necrosis  following  amputation       ........  254 

Duty  of  surgeon  in  amputations 255 

Instruments  used  in  amputations 255 

Highest  degree  of  skill  not  necessary        ,         .         .         .         .         .         .  256. 

Dihgence  required  in  preparing  cause    .    , 258 

Physician  held  responsible  for  error  of  judgment 259 

Reluctance  of  Courts  in  interfering  with  verdicts  ....  260 

CHAPTER  X. 

ALLEGED  MALPRACTICE  IN  OPHTHALMIC  CASES. 

Difference  between  leucoma  and  staphyloma     ......  261 

Treatment  of  staphyloma 266 

Action  of  nitrate  of  silver  on  specific  poison 272 

Error  of  judgment  not  malpractice,  in  one  skilled         ....  274 

CHAPTER  XI. 

ALLEGED    MALPRACTICE    IN    OBSTETRIC    CASES. 

Prolapsus  uteri,  mistaken  for  remains  of  placenta 276 

Witnesses  permitted  to  testify  to  skill  of  defendant       ....  277 

"  Schools"  in  Medicine  not  recognized  by  law 278 

Medical  books  in  evidence 280 

Irregular  practitioners 281 

"Regular  physician,"  definition  of 282 

"  Legitimate  Medicine,"  definition  of 282 


TABLE   OF  CONTENTS.  XV 

PAGS 

Ignorance  inferred  from  misfeasance  as  from  nonfeasance    .        .        .  282 

Allegata  et  probata  must  agree 283 

Improper  conversation  between  witness  and  juror          ....  285 

No  one  obliged  to  accuse  himself .         .  286 

CHAPTEE  XII. 

ALLEGED   MALPRACTICE    IN   MISCELLANEOUS    CASES. 

Venesection 289 

Accidents  in       ... 290 

Principal  responsible  for  act  of  servant 291 

Interstitial  absorption  from  inflammatory  softening 292 

Implied  contract  of  surgeon 295 

Negligence  and  want  of  skill  not  presumed 295 

Burden  of  proof 295 

Shortening  the  result  of  inflammatory  action 296 

Case  of  shortening 302 

Opening  an  abscess .     ,  .         .         .         •  303 

Personal  inspection  resisted 304 

Opinion  of  Jones,  J.,  on .         .         .         .  304 

Physical  and  microscopic  character  of  synovial  fluid  and  pus       .        .  317 

Secondary  hemorrhage         . 318 

Treatment  of  an  aneurism     . 319 

Barratry  and  maintenance 320 

Gangrene  ft-om  frost-bite .321 

Witness  cannot  give  evidence  on  merits  of  the  case      .        .        .        .  326 

New  trial,  granted  for  cause 326 

Amputation  of  breast       .         .        .        .        .         .        .         •'       •         .  331 

Physician  has  discretionary  powers 333 

Assent  of  wife ,         .  333 

In  using  a  bougie 334 

A  person  acting  bona  fide  and  honestly,  exercising  his  best  skill  to  cure, 

and  patient  dies,  it  is  no  manslaughter 336 

Lynch  V.  Davis. 

Husband  cannot  sue  as  administrator 337 

Wife  may  sue,  but  husband  must  be  joined  as  plaintiff          .        .        .  337 

Rule  of  damages         . 338 

Wife  cannot  sue  alone 338 

Case  overruled 338 


XVI  TABLE   OF   CONTENTS. 

PAGE 

Chose  in  action 338 

Two  actions  lie  for  personal  injury  .         . 339 

Husband  and  wife  must  be  joined  as  plaintiffs 340 

Mother  may  maintain  suit  when  father  dies,  deserts,  or  is  in  prison          .  340 

Eule  of  damages 343 

Bathing .         •         .         •         .343 

Physicians  not  responsible  for  act  of  nurses,  except,  &c.       .        .        .  344 

Vaccination 344 

Responsibility  of  physician 345 

Rules  for  preservation  of  vaccine  virus  and  for  vaccinating      .        .        .  346 

Felon 347 

Alleged  ill  effects  from  sugar  of  lead 347 

Gangrenous  erysipelas,  apt  to  be  mistaken  at  first  for  felon  .        ,         .  349 

Patients  to  be  informed  of  their  danger  only  exceptionally      .        .        .  350 

Erysipelas 350 

CHAPTER  XIII. 

ALLEGED  MALPRACTICE  IN  MEDICAL  CASES. 

Death  from  covmter-irritation 353 

Witnesses  permitted  to  give  evidence  of  skiU 358 

Dupes  of  quacks  not  always  the  ignorant 362 

"  Schools  "  not  recognized  by  law 365 

Death  from  trifling  causes 372 

The  valuable  discoveries  in  Medicine  are  never  kept  secret   .        .        .  377 

Physician  may  sue  for  fees 382 

"Botanic"  treatment  in  fevers 38i 

What  constitutes  murder 389 

Measure  of  damages 392 

Physician  not  chargeable  with  ignorance  if  he  prescribes  rightly     .         .  393 

Highest  degree  of  skill  not  required 393 

CHAPTER  XIV. 

SKILL    IN    DIAGNOSIS. 

First  duty  of  surgeon 396 

Examination  of  injury 396 

Use  of  anaesthetics 397 

Deviation  of  limb  from  its  normal  condition 397 

Measurement  and  crepitus .         .         .  399 

Difficulties  from  false  crepitus ,       .  400 

Phenomena  observed  in  dislocations ".  401 

Signs  of  dislocation  of  the  shoulder 404 

Diagnosis,  defined 405 


TABLE  OF  CONTENTS.  XVll 

CHAPTER  XV. 

SKILL    IN    TREATMENT. 

PA6B 

Elements  of  Skill  in  Fractures 406 

Bandages 406 

Danger  of  initial  bandage .         .         .  407 

Setting  of  fractures 409 

Extension  and  counter-extension 410 

Danger  of  extension 413 

Splints 415 

Fracture-beds 416 

Complications 417 

Elements  of  Skill  in  Dislocations 417 

Elements  of  Skill  in  Amputations 418 

CHAPTER  XVI. 

PROGNOSIS    IN   FRACTURES. 

Tables. 

Fractures  of  Humerus      .      , .        .        .421 

Fractures  of  Radius 428 

Fractures  of  Ulna 435 

Fractures  of  Radius  and  Ulna 437 

Fractures  of  Femur  ' 439 

Conditions  of  faithful  measurement 440 

Fractures  of  Patella 448 

Fractures  of  Tibia 449 

Fractures  of  Fibula  . .  451 

Fractures  of  Tibia  and  Fibula 453 

Hyde's  Fracture  Tables     .         .         .    " '466 

Primary  "  Immovable-movable"  Dressings 471 

Sayre's  Report  on  Fractures 473 

Van  Wageuen's  Fractuie  Tables 479 

Tables  compiled  from  Hamilton 490 

Complications 492 

Chorea,  Paralysis,  Non-union,  Shortening,  etc 493 

CHAPTER  XVII. 

NEGLIGENCE. 

Definition  of 499 

Duties  of  physicians 500 

Physicians  subject  to  same  rule  as  attorneys 501 

Physicians  may  leave  patient  after  "reasonable  "  notice  .         .         .         ,  501 

"Reasonable  "  skill  and  care,  are  questions  of  law  and  fact         .        .  502 
b 


xvm  TABLE   OF   CONTENTS. 

PAGE 

Degrees  of  negligence 503 

Implied  contract 506 

Improvements  in  Medicine  must  be  considered 508- 

CHAPTEK  XVni. 

CONTEIEUTORT  NEGLIGENCE. 

Definition  of  .         . 510 

Plaintiffs  must  use  care 512 

Burden  of  proof 512 

Mutual  negligence 514 

Instructions  to  jury .  516 

Duty  of  physicians 517 

To  whom  contributory  negligence  may  not  be  imputed         .         .         .  .518 

CHAPTER  XIX. 

NEGLIGENCE   OF   PHYSICIANS   AND   SURGEONS. 

Liability  in  gratuitous  services 521 

Duty  of  physician 522 

Established  rules  must  not  be  violated      .         .  ' 522 

Rules  for  administering  anesthetics      .......  522 

Physician  not  responsible  for  errors  of  judgment 527 

Burden  of  proof 527 

Patient  must  conform  to  necessary  prescriptions 528 


TABLE   OF   CASES   CITED 


(The  references  are  to  the  pages.    (L.  C)  designates  cases  from  the  lower  courts.) 


PAGE 

Alder  v.  Buckley  2.56 

Almond  v.  Nugent  187 

AuroraBranchR.E. Co. V.Grimes  512 


Baird  v.  Morford 
Bartlett  v.  Erie  Med.  Soc. 
Batson  v.  Donovan 
Bellinger  v.  Craigue 
Bemus  v.  Howard 
Bennedetti  v.  Mauchin 
Birge  v.  Gardiner 
Bowman  v.  Woods 
Brannar  v.  Stormont 
Brannberger  v.  Cleis'(L.  C.) 
Briggs  V.  Taylor 
Brown  v.  Kendall  (L.  C.) 
Bugard  v.  Gross  (L.  C.) 
Button  V.  Hudson  R.  R.,R 


Co. 

Carpenter  v.  Blake 
Cater  v.  Fernald  (L.  C.) 
Chamberlin  v.  Morgan| 
Chicago,  &c.,  R.  R.  Co.  v.  Goss 

V.  Becker 

Chicago   &  R.   I.   R.   R.   Co.   v. 

McKean 
Chicago   &    Miss.    R.   R.   Co. 

Patchin 
City  of  Chicago  v.  Major 
Clapp  V.  Wood 
Cleveland  v.  Spier 
Cleveland,  «S:c.,  R.  R.  Co.  v.  Terry  511 

350 
225 
384 
4 
273 


33 

7 
504 
196 
501 
513 
515 
277 
173 
127 
503 
169 
227 
513 

234 

19 

515 

510 

518 

512 

515 

516 

76 

508 


Closson  V.  Loomis  (L.  C.) 

Cochran  v.  Miller 

Coleman  v.  Munholland  (L.  C.) 

Commonwealth  v.  Thompson 

Corsi  V.  Maretzek 

Courtney  v.  Henderson  (L.  C.) 

Cox    V.    Westchester    Turnpike 

Road 
Crosby  v.  Fitch 


Doyle   V.    N.   Y.  Eye   Infirmary 

(L.  C.)  269 

Duff  V.  Budd  504 

Dyer  v.  Talcott^  £12 

Eaton  V.  B.  &|L.  R.  R.  Co.  513 

Eckert  v.  Long  Island  R.  R.  Co.  508 
Evansville,  &c.,  R.  R.  Co.  v.  Hiatt  512 
Ex  parte  Paine  4 


Fisher  v.  Gross  (L.  C.) 
Fisk  V.  Wait 
Foot  V.  Wiswall 
Fowler  v.  Sergeant 


318 
517 
503 
392 


515 
345 


G.  &  C.  U.  R.  R.  Co.  V.  Yarwood    503 

"Galena,  &c.,  R.  R.  Co.  v.  Fay  512 

Gallaher  v.  Thompson  210 

Gardner  v.  Heartt  499 

Geiselman  v.  Scott  511 
Glad  well  v.  Steggal                        •  123 

Grannis  v.  Branden  282 

Gray  v.  Green  525 
Great  Western  R.  R.  Co.  v.  Ha- 

worth  503 

Green  v.  Hudson  R.  R.  R.  Co.  338 

Haire  v.  Reese  (L.  C.)  292 

Hallam  and  Barnes  V.  Means  180 

Hancke  v.  Hooper  289 

Haskell  v.  Cross  (L.  C.)  80 

Hibbard  v.  Thompson  516 

Hoby  V.  Built  501 

Howard  v.  Grover  257 

111.  Cent.  R.  R.  Co.  Hutchinson  518 
V.  Munn  503 


Indianapolis  &  Cinn.  R.  R.  Co.  v. 
CaldweU  514 


Johnson  v.  Tillson 


513 


XX 


TABLE   OF  CASES   CITED. 


PAGE 

514 
394 


Johnson  v.  Hudson  R.  R.  R.  Co. 
Jones  V.  Eay 


Kay  V.  Thompson  321 

Kendall  v.  Bio-\vn  172 
Kerwhaker  v.  Cleveland  R.  R.  Co.  514 

Lanphier  v.  Phipos  521 

Landon  v.  Humphrey  344 

Leighton  v.  Sargeant  (L.  C.)  203 

V.  Sargeant  210,  219 

Long  V.  Morrison  338 

Lowe  V.  McNevins  61 

Lynch  v.  Davis  337 

McCandless  v.  McWha  191,  194 

McClallan  v.  Adams  331 

McKehoe  v.  Hall  (L.  C.)  261 
Means    v.    Hallam    and    Barnes  , 

(L.  C.)  176 

Merrill  v.  Hampden  513 

Mertz  V.  Detweiler  14 

Morris  v.  Phelps  515 

Mudge  V.  Beale  (L.  C.)  524 

Murphy  v.  Deane  513 

Nelson  v.  Macintosh  521 

N.  Y.  C.  R.  Co.  V.  Lockwood  504 

Noyes  v.  Allen  (L.  C.)  79 

Odlin  V.  Stetson  507 

Paine  v.  Med.  Soc.  7 

Park  V.  O'Brien  513 

Patten  v.  Wiggin  327 

Peck  V.  Martin  381 

Perionosky  v.  Freeman  343 

Pippin  V.  Sheppard  521 

Purves  V.  Landell  506 

Ramadge  v.  Ryan  7 
Rex  V.  Long                                353,  364 

V.  Simpson  361 

V.  Van  Butchell  334 


PAOE 

Rex  V.  "Williamson 

276 

Reynolds  v.  Graves 

119 

Rich  V.  Pierpoiut 

393 

Ritchey  v.  West 

108 

Riley  v.  Home 

504 

Rowson  V.  Earle 

501 

Ruddock  V.  Lowe 

394 

Russell  V.  Warduer  (L.  C.) 

52 

Scudder  v.  Crosson 

111 

Seare  v.  Prentice 

231 

Shields  v.  Blackburne 

521 

Shilcock  V.  Passman 

500 

Simonds  v.  Henry 

527 

Skelley  v.  Kahn 

503 

Slater  v.  Baker 

189 

Smith  w.  Irvin  (L.  C.) 

251 

513 
102 

Smothers  v.  Hanks 

St.  L.  A.  &  T.  H.  R.  R.  Co. 

V. 

Todd 

515 

Steamboat  New  World  v.  King 

503 

Steele  v.  Newton  (L.  C.) 

47 

Teffi,  V.  Wilcox 

36 

Thorn  v.  Deas 

507 

Tonawanda  R.  Co.  v.  Mimger 

499 

Tweedie  v.  Ramadge 

7 

Twombly  v.  Leach 

347 

Vansandau  v.  Browne 

501 

Volmuth  V.  Hathaway  (L.  C.) 

84 

Walsh  V.  Sayre  (L.  C.) 

303 

Waters  v.  Wing 

513 

Wenger  v.  Calder 

250 

White  V.  Carrol 

4 

Wyld  V.  Pickford 

504 

Wilmot  V.  Howard 

62 

Wilson  V.  Brett 

504 

Wood  V.  Clapp 

76 

Woodward  v.  Hancock 

502 

Young  V.  EuUerton  (L.  C.) 


253 


CIVIL  MALPEACTICE. 


CHAPTER   I. 

DEFINITIONS.  —  ETHICAL   MALPEACTICE. 

Malpeactice  may  be  divided  into  three  kinds,  namely : 

1.  "  Ethical  Malpractice,"  in  which  persons  claiming  to  be 
medical  men  bring  suits  against  physicians  or  against  Med- 
ical Societies,  for  alleged  insults  to  their  professional  dignity. 

2.  "  Civil  Malpractice,"  in  which  patients  bring  suits  for 
damages,  which  they  have  or  think  they  have  sustained 
through  want  of  skill,  or  from  negligence  on  the  part  of  their 
attending  physician.  3.  "  Criminal  Malpractice,"  in  which 
the  people  or  State  is  made  the  plaintiff. 

Suits  under  the  first  classification  are  usually  instituted  by 
"  quacks."  This  term,  in  the  medical  profession,  is  apphed 
to  any  one,  whether  he  has  any  professional  education  or  not, 
who  violates  §§  3,  4,  Art.  1,  Ch.  IL,  of  what  is  known  as  tho 
Code  of  Ethics  of  the  American  Medical  Association,  which 
declares  it  "  to  be  derogatory  to  the  dignity  of  the  profession 
to  resort  to  public  advertisements,  or  private  cards,  or  hand- 
bills, inviting  the  attention  of  individuals  affected  with  par- 
ticular diseases  ;  pubHcly  offering  advice  and  medicine  to  the 
poor  gratis,  or  promising  radical  cures  ;  or  to  publish  cases 
and  operations  in  the  dail}^  prints,  or  to  suffer  such  publica- 
tions to  be  made  ;  to  invite  laymen  to  be  present  at  opera- 
tions, to  boast  of  cures  and  remedies,  to  adduce  certificates 
of  skill  and  success,  or  to  perform  any  other  similar  acts. 
These  are  the  ordinary  practices  of  empirics,  and  are  highly 
reprehensible  in  a  regular  physician.     Equally  derogatory  to 


2  CIVIL  MAI.PEACTICE. 

professional  character  is  it  for  a  physician  to  hold  a  patent 
for  any  surgical  instrnment  or  medicine  ;  or  to  dispense  a 
secret  nostrum.^  whether  it  be  the  composition  or  exclusive 
property  of  himself  or  of  others.  For,  if  such  nostrum  be 
of  real  efficacy,  an}^  concealment  regarding  it  is  inconsistent 
with  beneficence  and  professional  liberality,  and  if  mystery 
alone  gives  it  value  and  importance,  such  craft  implies  either 
disgraceful  ignorance  or  fraudulent  avarice.  It  is  also  repre- 
hensible for  physicians  to  give  certificates  attesting  the  effi- 
cacy of  patent  or  secret  medicines,  or  in  any  way  to  promote 
the  use  of  them." 

So,  also,  the  term  is  applied  to  those  practitioners  of  the 
"  Specific  School,"  those  ''  transcendental  pathologists,"  who 
substitute  for  anatomy,  physiology,  and  common  sense,  a 
dogma,  upon  which  to  build  an  enlightened  experience,  who 
consider  as  signs  of  the  same  disease,  and  as  possessing  equal 
value,  the  following  symptoms  :  "  Insatiable  thirst,  pallor  of 
the  face,  scrofula,  sweating  of  the  head  after  sleep,  burning 
in  the  palms  of  the  hands,  attacks  of  suffocation,  furuncles, 
vomiting  of  blood,  hiccough  after  eating  or  drinking,  cut- 
ting pain  in  the  rectum  while  at  stools,  absence  of  vene- 
real desire,  unbridled  lusts,  somnolency  during  the  day  after 
eating,  paroxysms  of  anger  bordering  on  mental  alienation, 
tears  frequently  at  the  slightest  causes,"  &c.,  &c. ;  and  who 
assure  us  in  their  therapeutics,  that  the  administration  of  the 
1,000,000,000,000,000,000,000th  of  a  grain  of  carbonate  of 
lime  —  common  chalk  —  produces  no  less  than  a  thousand 
and  ninety  symptoms,  from  which  I  select  the  following : 
"  On  the  fifth  day,  itching  on  the  border  of  the  eyelids  ;  thir- 
teenth day,  in  the  evening,  on  going  out,  unsteady  gait ;  sev- 
enteenth day,  ardent  venereal  desires,  especially  during  a 
walk  before  dinner  ;  twenty-first  day,  great  heat  at  the  ex- 
tremity of  the  big  toe ;  twenty-eighth  day,  itching  at  the 
anterior  part  of  the  glans  penis,  after  urination,"  ^  and  so 
on,  ad  nauseam. 

As  this  volume  may  fall  into  the  hands  of  some  who  are 
^  Hahnemann,  Treatise  on  Chronic  Diseases. 


DEFINITIONS.  —  ETHICAL  MALPRACTICE.  3 

not  familiar  witli  the  assumptions  of  these  refined  Patholo- 
gists and  Therapeutists,  I  will  be  pardoned  for  presenting  a 
few  more  flowers  culled  from  their  choicest  conservatory, 
Jahr's  Manual  of  Medicine,  "  translated  from  the  German 
by  authority  of  the  North  American  Academy  of  the  Homoe- 
opathic Healing  Art."  As  the  result  of  the  attenuations  and 
shakings  certain  of  the  remedies  receive  —  and  I  may  say 
here,  most  of  them  are  taken  from  the  regular  arsenal  —  we 
have,  "  Drawing  pain  in  hollow  teeth,  extending  to  the  eye- 
brows ;  cracked  upper  lip ;  stitches  in  hollow  teeth,  when 
biting ;  pain  and  pungency  in  the  elbo2V,  which  does  not  al- 
low one  to  stretch  or  exert  the  arm  ;  pungency  in  the  knee 
and  bend  of  the  knee ;  inflammation  and  swelling  of  one  half 
of  the  nose  (which  side  the  record  saith  not)  ;  torpor  and 
stiffness  of  one  half  of  the  tongue  (probably  the  same  side 
as  of  nose)  ;  blood-blisters  on  the  inside  of  the  upper  lip ; 
loss  of  appetite,  chiefly  for  bread  and  tobacco-smoking  ;  rend- 
ing and  stinging  in  corns ;  red  itching  spots  on  the  shin- 
bone  ;  tingling  in  the  points  of  the  toes  ;  perspiration  on  the 
hands,  and  between  the  fingers ;  stitches  in  the  ankle  ivhen 
stepp)ing  out;  a  voluptuous  tickling  on  the  sole  of  the  foot, 
after  scratching  a  little^  making  a  man  (used  in  the  sense  of 
totality,  —  men,  women,  children  ?  )  almost  mad  ;  ulceration 
of  big  toe,  with  a  pi-ickling  pain  ;  an  itching,  tickling  sensa- 
tion at  the  outer  edge  of  the-  palm  of  the  left  hand,  which 
obliges  the  person  to  scratch." 

Chamomile  is  followed  by  the  following  mental  effects  : 
"  Hypochondriac  paroxysms  of  anxiety,  as  if  the  heart  would 
break  ;  restlessness,  with  anxious  groaning  and  tossing  about ; 
irritable  readiness  to  weep,  with  whining  and  howling,  fre- 
quently on  account  of  old  or  imaginary  offences." 

Chloride  of  sodium  —  common  salt  —  is  followed  by  more 
disastrous  effects  :  "  Melancholic  sadness,  with  searching  for 
many  unpleasant  things;  much  weeping,  and  increased  by 
consolation ;  sorrowfulness  about  futurity  ;  anxiousness,  also 
during  a  thunder-storm,  chiefly  at  night ;  indolence,  aversion 
to  talk,  joylessness,  hasty  impatience,  and  irritability;  easily 


4  CIVIL  MALPRACTICE. 

frightened  ;  hate  of  former  offenders  ;  inclination  to  laugh ; 
great  weakness  of  memory  and  forgetfulness ;  awkward- 
ness," &c.,  &c. 

Sulphur  is  no  better  in  its  mental  influence,  if  anything 
worse.  Its  administration  is  followed  by  "  sadness  and  de- 
jection ;  melancholy,  with  doubts  about  his  soul's  welfare 
(suggestive)  ;  great  inclination  to  weep  frequently,  alternat- 
ing with  laughing ;  inconsolableness,  and  reproaches  of  con- 
science about  every  action ;  attacks  of  anxiety,  in  the  even- 
ing ;  nocturnal  fear  of  spectres ;  philosophical  and  religious 
reveries ;  insanity,  with  imagination  as  if  he  were  in  posses- 
sion of  beautiful  things  and  in  abundance  of  everything." 
But  enough  of  this  drivelling  nonsense.  What  else  can  we 
call  them  but  "  quacks  "  —  ignorant  pretenders  to  knowledge 
they  do  not  possess  ?  ^ 

I  present  the  following  case  as  bearing  somewhat  upon  the 
question,  and  clearing  up  very  decidedly  one  phase  of  it. 

Ex  PAETE  Paine.2 

MOTIOK  for  mandamus  against  the  Orange  County  Med- 
ical Society,  commanding  them  to  admit  the  relator  as  a 
member. 

"  He  being  a  resident  of  that  county,  and  having  a  diploma 
from  the  regents  of  the  university  as  doctor  of  medicine, 
presented  it  to  the  society  ;  but  they  refused  to  admit  him 
as  a  member  on  two  grounds  :  1.  That  he  had  offered  by 
public  advertisement  to  practise  either  on  the  '  Allopathic ' 
or  '  Homoeopathic  '  system,  as  the  patient  should  wish  :  and 
declared  his  intention  to  do  so  to  a  committee  of  examina- 

1  The  law  makes  no  difference  between  the  different  Schools  of  Medicine. 
To  call  a  person,  laM'fully  practising  as  a  physician,  a  "quack,"  is  in  effect 
charging  him  with  a  want  of  the  necessary  knowledge  and  training  to  practise 
the  system  of  medicine  which  he  undertakes  to  practise.  White  v.  Carroll,  42 
N.  y.  161.  It  has  been  held  that  the  professional  services  of  a  "medical 
clairvoyant"  are  "medical  services  "  within  the  statute.  See,  also,  Corsi  v. 
Maretzek,  4  E.  D.  Smith,  1. 

2  1  Hill,  665,  N.  Y. 


DEFINITIONS.  —  ETHICAL  MALPRACTICE.  5 

tion  appointed  by  the  society  ;  having,  moreover,  actually 
practised  on  the  latter  system.  2.  That  he  had  spoken  dis- 
respectfully of  the  society,  and  published  a  slanderous  news- 
paper article  concerning  the  members  and  a  resolution  passed 
by  the  society." 

These  grounds  were  shown  by  affidavits  to  be  true.  And 
it  was  further  shown  that  the  homoeopathic  system  of  prac- 
tice is  contrary  to  the  established  system  as  followed  by 
regular  members  of  the  medical  profession. 

Dr.  Paine  had,  before  the  application  and  rejection  in 
question,  been  some  time  in  practice  in  the  County  of  Orange, 
and  notice  had  been  served  on  him  pursuant  to  1  R.  S.  448 
(2d  ed.  §§  1,  2),  requiring  him  to  apply  for  and  receive  a 
certificate  of  admission  as  a  member  of  the  society. 

By  the  Court,  Cowen,  J.  It  is  not  denied  that  Dr.  Paine 
held  a  proper  license  to  practise  ;  and  the  question  is,  whether 
such  a  man,  residing  and  practising  in  a  county  of  this  State, 
is  by  law  entitled  to  admission  as  a  member  of  the  county 
society,  although  they  believe  him  to  be  a  quack,  and  it  is 
known  that  he  is  in  an  open  quarrel  with  them,  and  has 
slandered  them  professionally. 

The  statute  seems  to  impose  a  general  obligation  upon 
the  society  to  receive  every  regularly  licensed  physician  res- 
ident in  the  county,  as  a  member  (vide  1  R.  S.  448,  2d  ed. 
§§  2,  16,  24,  25)  ;  and  does  not  in  terms  allow  the  society 
to  raise  any  objection,  though  it  sanctions  his  expulsion  for 
gross  professional  ignorance  or  misconduct,  or  when  his  con- 
duct or  habits  are  immoral.  To  effect  his  expulsion,  specific 
charges  must  be  preferred  to,  and  established  before  the 
judges  of  the  county  court.  1  R.  S.  448,  449,  2d  ed.  And 
on  conviction  he  may  be  expelled  and  declared  to  be  dis- 
qualified forever  after  ;  or  he  may  be  suspended  from  prac- 
tice. 

It  is  sufficiently  established  in  proof  that  the  relator  has 
wilfully  departed  in  his  practice  from  the  approved  and  es- 
tablished rules  of  the  medical  profession  ;  in  short,  that  his 
practice,  in  the  opinion  of  the  society,  is  habitually  empirical. 


6  CIVIL   MALPRACTICE. 

This  appears  to  be,  in  their  opinion,  the  result  either  of  gross 
ignorance  in  his  profession,  or  it  amounts  to  gross  miscon- 
duct ;  and  therefore  they  refuse  to  admit  him.  It  is  insisted 
by  his  counsel  that  he  must  be  admitted  at  all  events,  and 
that  if  the  society  desire  to  prevent  his  practising,  they  must 
prefer  charges  and  proceed  to  a  trial  in  the  form  prescribed 
by  the  statute.  I  incline  to  think  they  are  not  bound  to  do 
this,  but  may  prior  to  the  admission  of  the  candidate,  in  all 
cases,  inquire  and  satisfy  themselves  whether  any  of  the 
causes  exist  for  vidiicli  they  might  prefer  charges  against 
him  ;  and  on  concluding  in  the  affirmative  may  refuse  to 
admit  him  as  a  member.  To  be  sure,  they  ought  to  make  a 
clear  case  on  oar  being  moved  for  a  mandamus. 

But  if  I  am  mistaken  in  supposing  the  society  have  a  right 
to  inquire  and  refuse,  I  yet  feel  quite  clear  that,  under  the 
circumstances  of  this  case,  we  ought  not  to  compel  the  ad- 
mission of  Dr.  Paine  into  a  society  whose  feelings  he  has 
outraged,  and  Avhose  rules  of  practice  he  has  openly  set  at 
defiance.  We  are  enabled  to  see  to  a  moral  certainty  that, 
though  the  candidate  should  be  received,  he  would  either  be 
expelled  or  suspended  in  the  regular  way,  for  the  very  cause 
of  refusing  to  admit  him. 

Seeing  this,  it  would  be  indiscreet  to  interfere.  On  appli- 
cation for  a  writ  of  mandamus,  we  must  sometimes  exercise 
a  discretion  ;  and  it  has  been  said,  that  even  where  the  officer 
of  a  corporation  has  been  irregularly  removed,  yet  if  the 
court  see  good  cause  for  removal,  this  prerogative  writ  shall 
not  go  to  command  a  restoration.  The  reason  given  is,  that 
by  proceeding  in  a  regular  way,  another  motion  would  follow 
for  the  same  cause.  Rex  v.  The  Mayor,  ^c.  of  Axhridge^ 
Cowp.  523  ;  and  see  per  Ashhurst,  J.,  in  Rex  v.  The  Mayor, 
^0.  of  London,  2  T.  R.  181,  182. 

In  the  case  before  us,  it  is  fully  in  proof  by  professional 
witnesses,  men  who  understand  the  subject,  that  Dr.  Paine 
is  practically  a  quack  in  his  profession.  This  implies  gross 
ignorance,  or  a  gross  misconduct,  or  both.  We  see  that,  if 
admitted,  he  should  be  expelled  by  the  judges  of  the  county 


DEFINITIONS.  —  ETHICAL   MALPRACTICE.  7 

court.     And  in  the  exercise  of  a  proper  discretion  upon  such 
proof,  if  on  no  other  ground,  we  ought  not  to  interfere. 

Motion  denied. 

The  People,  ex  rel.  Bartlett  v.  Erie  Co.  Med.  Soc,  N.  Y., 
1  Tiffany,  is  a  case  similar  to  the  above,  in  which  the  ap- 
pellate court  held  that  a  mandamus  is  the  appropriate  remedy 
to  compel  a  county  medical  society  to  admit  an  applicant  en- 
titled to  membership. 

Further,  a  licensed  physician,  having  the  prescribed  quali- 
fications, cannot  be  excluded  from  the  franchise  on  the  ground 
that  he  did  not  conform  to  the  conventional  rules  of  the  so- 
ciety at  a  period  antecedent  to  his  application. 

The  code  of  medical  ethics,  adopted  by  the  by-laws  of  a 
county  society,  is  obligatory  on  members  alone,  and  its  non- 
observance,  previous  to  membership,  furnishes  no  legal  cause 
either  for  exclusion  or  expulsion. 

When  a  party,  having  a  clear  presumptive  title,  claims 
admission  to  the  exercise  of  a  corporate  franchise,  the  right 
of  immediate  expulsion  shall  be  clear  and  unquestioned  to 
justify  the  rejection  of  the  claim. 

The  general  policy  of  the  law  is  opposed  to  sharp  and 
summary  judgment,  where  the  party  whose  rights  are  in- 
volved has  no  opportunity  to  be  heard. 

Ramadge  v.  Ryan.i 

(C.  C.  Pleas  Eng.,  Trinity  Term,  1832.) 

Libel.  The  plaintiff  sought  to  recover  damages  for  the 
following  article,  which  appeared  in  the  London  Medical  and 
Surgical  Journal,  a  periodical  publication  conducted  by  the 
defendant :  — 

"  Tweedie  v.  Ramadge.  Dr.  Ramadge  was  in  attendance  on 
a  case  of  typhus.  The  patient,  a  young  lady,  was  bled  from 
the  arm  on  a  Friday,  and  eight  dozen  (ninety-six)  leeches 
applied  to  the  head  and  neck.     On  Saturday  both  temporal 

1  9  Bingham,  333. 


8  CIVIL  MALPRACTICE. 

arteries  were  opened ;  the  patient  fainted,  and  the  apothe- 
cary, who  was  likewise  in  attendance,  left  her.  The  nurse 
brought  her  round  with  wine  and  water.  On  the  Sunday 
another  dozen  leeches  were  applied,  and  immediately  she 
became  delirious,  when  Dr.  Tweedie's  advice  was  requested 
by  the  relatives.  Dr.  Tweedie  having  spoken  apart  with 
Dr.  Ramadge,  addressed  Mrs.  Reynolds,  the  sister  of  the 
patient,  and  said,  that  having  attended  the  family  before,  he 
should  be  happy  now  to  give  his  assistance  to  the  young 
lady  ;  but  that  Dr.  Ramadge's  conduct  in  late  correspond- 
ence with  John  Long  had  been  such  that  no  medical  man  of 
respectability  could  call  him  in,  or  consult  with  him,  without 
injuring  himself  in  the  eyes  of  his  brethren.  That  he  bore 
no  private  pique  against  Dr.  Ramadge  ;  he  believed  him 
indeed  to  be  clever ;  but  his  character,  as  regarded  the  above 
transaction,  rendered  it  imperative  for  all  medical  men  to 
decline  acting  with  him,  and  Mrs.  Reynolds  must,  therefore, 
choose  which  she  would  intrust. 

"  Dr.  Ramadge  replied  in  great  anger  that  he  was  a  gentle- 
man by  birth,  education,  and  profession,  but  that  Dr.  Tweedie 

was  neither Dr.  Tweedie  answered  him  by  turning 

coolly  on  his  heel  and  walking  out  of  the  room.  Dr.  Tweedie 
was  retained,  and  cured  the  patient  by  exactly  opposite  treat- 
ment. Dr.  Ramadge,  it  is  said,  is  frequently  at  supper  with 
John  Long.  Lancet.  —  '  Br.  Ttveedie  has  honorably  and 
faithfully  discharged  his  duty  to  his  medical  brethren  ;  and 
we  hope  every  one  else  will  do  the  same.  We  are  well  aware 
who  it  is,  and  a  medical  man  to  boot,  that  makes  the  trio  in 
these  fam.ily  suppers.  Let  him  be  warned  in  time :  he  takes 
upon  him  to  defend  this  nefarious  quack  and  man-slaughterer 
in  the  face  of  the  whole  profession.  Let  him  take  warning, 
or  we  will  not  spare  him.''  "  —  Ed. 

The  defendant  pleaded  the  truth  of  the  allegations  in 
justification,  and  issue  was  joined  upon  his  plea. 

The  alleged  libel,  with  the  exception  of  the  eight  lines  in 
italics,  had  been  copied  from  a  periodical  journal  called  The 
Lancet,  the  article  in  which  was  headed,  "  Result  of  uphold- 
ing Quacks." 


DEFINITIONS.  — ETHICAL  MALPRACTICE.  9 

For  that  article  the  plaintiff  brought  an  action  against 
Wakley,  the  editor  of  The  Lancet,  who  pleaded  only  the 
general  issue ;  defended  himself  ;  and  upon  the  trial  of  his 
cause,  on  the  day  preceding  the  trial  of  the  present  cause 
against  Ryan,  got  off  with  a  verdict  for  -|(i.  damages. 

Upon  the  trial  of  the  present  cause,  the  defendant's  coun- 
sel, after  showing  under  his  plea  of  justification  what  had 
been  the  treatment  of  Mary  Bullock,  and  what  had  passed 
upon  the  interview  between  the  plaintiff  and  Dr.  Tweedie, 
proposed  to  call  Mr.  Brodie,  an  eminent  surgeon,  to  say 
whether  he  would  meet  the  plaintiff  in  consultation ;  but 
the  chief  justice  held  such  evidence  to  be  inadmissible.  It 
was  then  proposed  that  Mr.  Brodie  should  be  asked  whether 
Dr.  Tweedie,  in  refusing  to  consult  with  the  plaintiff,  had 
honorably  and  faithfully  discharged  his  duty  to  the  medica,! 
profession.  The  chief  justice  thought  the  question  ought 
not  to  be  put,  and  the  plaintiff  obtained  a  verdict  for  <£400. 

Taddy^  Serjt.,  moved  for  a  new  trial,  on  the  ground  that 
Mr.  Brodie's  testimony  ought  to  have  been  received  upon 
the  same  principle  as  the  opinion  of  scientific  men  upon  mat- 
ters of  science  \Bechwitli  v.  Sydehotham,  1  Campb.  116  ; 
Severn  v.  Olive,  3  Brod.  &  Bin^.  72)  ;  or  of  foreign  lawyers 
on  questions  of  foreign  law  ;  because  the  jury  must  be  igno- 
rant of  the  conventional  rules  and  etiquette  established  in 
each  profession,  which  can  be  only  known,  or  only  accurately 
known,  by  members  of  such  profession.  None,  for  example, 
but  members  of  the  bar  can  appreciate  the  infamy  attendant 
on  obtaining  practice  by  courting  and  feasting  attorneys  ;  so 
that  it  is  only  from  the  estimation  of  his  brethren  that  the 
public  can  judge  whether  an  individual  conducts  himself  up- 
rightly in  those  matters  in  which  he  is  most  concerned.  The 
evidence  excluded,  therefore,  was  indispensable  for  the  de- 
fendant's justification. 

TiNDAL,  C.  J.  Witnesses  skilled  in  any  art  or  science 
may  be  called  to  say  what,  in  their  judgment,  would  be  the 
result  of  certain  facts  submitted  to  their  consideration  ;  but 
not  to  give  an  opinion  on  things  with  which  a  jury  may  be 


10  CIVIL   MALPEACTICE. 

supposed  to  be  equally  well  acquainted.  If  in  this  cause 
an}^  specific  rules  of  the  medical  profession  had  been  given 
in  evidence,  the  defendant  perhaps  might  have  been  allowed 
to  show  that  the  plaintiff,  by  violating  those  rules,  had  ren- 
dered himself  unworthy  of  the  countenance  of  his  brethren. 
But  the  question  here  was,  whether  a  physician,  in  refusing 
to  consult  with  the  plaintiff,  had  honorably  and  faithfully 
discharged  his  duty  to  the  medical  profession. 

The  answer  to  that  might  depend  altogether  on  the  temper 
and  peculiar  opinions  of  the  individual  witness,  and  was  a 
point  on  which  the  jury  were  as  capable  of  forming  a  judg- 
ment as  the  witness  himself.  On  this  ground,  therefore, 
there  is  no  reason  for  granting  a  rule  for  a  new  trial. 

Taddy  then  sought  to  obtain  a  rule  on  the  ground  that 
one  of  the  jurors  had  come  to  the  trial  predetermined  to 
give  heavy  damages  against  the  defendant.  As  to  which  he 
read  an  affidavit  of  two  members  of  the  College  of  Surgeons, 
who  were  present  at  the  trial  of  the  cause  of  Ramadge  v. 
Wakley^  that  at  the  conclusion  of  that  trial  a  person,  whose 
name  was  not  then  known  to  them,  came  up  and  expressed 
his  surprise  at  the  small  amount  of  damages  which  had  been 
given  to  the  plaintiff  in  that  cause,  and  at  the  same  time 
said,  "  I  shall  be  on  the  jury  to-morrow,  and  I  will  take  care 
that  the  verdict  does  not  go  that  way,"  or  words  to  the  like 
effect ;  that  one  of  the  deponents  then  remarked,  that  the 
individual  addressing  them  had  not  yet  heard  any  evidence ; 
to  which  the  individual  replied,  that  "  he  had  heard  quite 
enough,  and  that  his  mind  was  made  up  as  to  the  verdict  he 
should  give; "  that  on  the  following  day,  June  26,  1832,  the 
depon^its  were  again  respectively  present  in  the  Court  of 
Common  Pleas  at  Westminster,  and  that  when  the  cause  of 
Ramadge  v.  Ryan  was  called  on  for  trial,  the  deponents  saw 
the  individual  who  had  on  the  previous  day  made  the  before 
mentioned  remark  to  tliern  sitting  as  a  juror  on  the  trial  of 
that  cause  ;  that  having  reason  to  believe  the  individual  in 
question  was  John  Miller  Hart,  of  Mornington  Crescent,  they 
went  to  his  residence  on  the  31st  of  October,  and  having;  ob- 


DEFINITIONS.  —  ETHICAL   MALPRACTICE.  11 

tained  an  interview,  asked  if  he  had  been  one  of  tne  3ury- 
raen  on  the  trial  of  this  cause  ;  he  said,  he  admitted  that  he 
had  ;  that  he  had  conversed  with  the  deponents  at  the  door 
of  Westminster  Hall,  on  the  25th  of  June,  on  the  subject  of 
the  verdict  in  the  cause  of  Ramadge  v.  Wakley,  and  recol- 
lected the  remark  he  then  made ;  that  he  supposed  deponents 
had  come  to  him  about  a  new  trial  in  Ramadge  v.  Ryan; 
and  that  he  knew  something  that  would  get  a  new  trial,  or 
words  to  that  effect. 

Other  affidavits  disclosed  that  Hart  had  been  struck  oft" 
the  roll  of  attorneys  for  fraud  and  misconduct. 

The  court  were  referred  to  Wynn  v.  Bishop  of  Bangor^ 
2  Com.  Rep,  601,  which  was  an  action  of  ejectment  in  which 
a  view  had  been  granted.  On  making  the  view,  one  of  the 
showers  for  the  plaintiff  having  made  certain  observations 
upon  the  subject  in  dispute,  one  of  the  jurors  observed  that 
by  what  they  had  seen,  they  should  soon  determine  the  dis- 
pute ;  and  afterwards,  on  the  day  before  the  ti'ial,  he  said  that 
the  plaintiff  was  a  neighbor,  and  right  or  wrong  he  would 
give  it  for  him.  The  court  held,  that  though  that  might 
form  a  ground  of  challenge,  yet  it  was  proper  to  allege  the 
matter  as  cause  for  a  new  trial,  and  granted  the  rule.  The 
case  of  Herbert  v.  Shaw,  11  Mod.  111-118,  was  cited  against 
the  application,  but  overruled  by  the  court.  In  Dent  v. 
Hundred  of  Hertford,  2  Salk.  645,  a  new  trial  was  granted, 
on  an  affidavit  that  the  foreman  had  declared  that  plaintiff 
should  never  have  a  verdict  whatever  witnesses  he  produced. 

A  rule  nisi  having  been  granted  upon  the  matters  dis- 
closed in  the  affidavits,  — 

Wilde  ^  Spankie,  Serjts.,  showed  cause  upon  an  affidavit 
in  which  the  expressions  alleged  to  have  been  used  by  Hart 
at  his  house  on  the  31st  of  October  were  altogether  denied, 
and  in  which  Hart  explained  the  conversation  in  Westmin- 
ster Hall  by  deposing  that  his  words  were :  "  Well !  I  am  sur- 
prised at  such  small  damages  ;  had  I  been  on  the  jury  I  cer- 
tainly should  have  given  very  heavy  damages.  I  am' upon 
the  jury  to-morrow."     That  no  other  words  escaped  him; 


12  CIVIL   MALPRACTICE. 

and  that  he  never  said,  "  I  will  take  care  the  verdict  shall  not 
go  that  way  to-morrow." 

They  referred  to  Onions  v.  JVaish,  7  Price,  203,  where  the 
Court  of  Exchequer  refused  to  grant  a  rule  for  setting  aside 
a  verdict  on  an  affidavit  of  the  failing  party,  stating  that  one 
of  the  jury  was  a  relation  of  the  successful  party,  and  that 
they  were  in  habits  of  friendship  and  intimacy  together,  and 
particularizing  various  instances  and  expressions,  on  the  part 
of  the  juryman,  of  partiality  and  prejudice;  and  offered  an 
affidavit  from  the  foreman  of  the  jury,  on  the  ground,  that 
though  in  general  an  affidavit  from  a  juryman,  as  such,  can- 
not be  received,  yet  here,  where  the  conduct  of  one  of  the 
jurors  was  impeached,  it  ought  to  be  open  to  the  other  jurors 
to  show  that  the  verdict  was  not  occasioned  by  the  practice 
of  that  individual. 

The  court,  however,  refused  to  receive  this  affidavit,  ob- 
serving that  the  affidavits  on  the  other  side  applied  only  to 
the  conduct  of  the  juror  before  he  entered  the  jury-box. 

Taddy,  in  support  of  his  rule,  urged  that  the  expression 
which  Hart  admitted  he  had  used,  "  I  am  on  the  jury  to- 
morrow," if  spoken,  as  it  doubtless  was,  in  a  significant  way, 
showed  such  a  predetermination  as  was  incompatible  with 
fair  trial,  and  sufficiently  accounted  for  the  disparity  between 
the  two  verdicts. 

TiNDAL,  C.  J.  If  the  ground  of  application  for  a  new 
trial  disclosed  by  the  affidavits  on  the  part  of  the  defendant 
had  remained  unanswered  and  xincontradicted,  I  should  have 
thought  the  court  justified  in  making  this  absolute  ;  for  it 
would  go  to  create  a  prejudice  against  trial  by  jury  if  ver- 
dicts were  to  be  the  result  of  previous  determination  ;  and 
expressions  such  as  those  imputed  to  the  juror  Hart  would 
have  been  a  good  ground  of  challenge  if  proved  to  the  ex- 
tent to  which  they  have  been  alleged  in  the  affidavit.  In  R. 
V.  Cook^  6  St.  Tr,  337,  expressions  of  this  nature  were 
deemed  so  improper  that  the  juror  ought  not  to  be  asked 
whether  he  had  used  them,  but  that  they  ought  to  be  proved 
by  such  as  heard  them  spoken.     If,  therefore,  the  expres- 


DEFINITIONS.  — ETHICAL  MALPRACTICE.  13 

sions  imputed  to  Hart  had  remained  unanswered,  this  cause 
must  have  been  referred  to  a  new  jury.  But  the  conversa- 
tion on  the  31st  of  October  is  denied  altogether,  as  is  also  a 
portion  of  that  alleged  to  have  taken  place  on  the  25th  of 
June ;  and  the  effect  of  the  residue  appears  to  me  to  be  suf- 
ficiently answered  by  Hart's  affidavit.  This  is  not  a  case, 
therefore,  in  which  the  existence  of  such  injustice  has  been 
established  as  to  call  for  a  new  trial,  and  the  precise  ground 
of  application  having  been  answered,  the  rule  must  be  dis- 
charged. 

Gaselee,  J,  concurred  in  thinking  that  the  affidavit  in 
support  of  the  motion  had  been  answered. 

Bosanqtjet,  J.  The  rule  nisi  was  properly  granted,  upon 
the  affidavits  then  before  the  court ;  but  I  think  they  have 
been  answered,  as  far  as  regards  the  application  for  a  new 
trial.  The  situation  of  Haxt,  as  an  attorney  struck  off  the 
roll,  must  be  put  out  of  our  consideration,  because  the  de- 
fendant need  not  have  left  him  on  the  panel ;  but  the  expres- 
sion imputed  to  him,  that  "  he  would  take  care  the  verdict 
should  not  go  the  same  way,"  falls  within  the  principle  of 
the  case  in  Salkeld,  and  if  unanswered,  would  have  afforded 
ground  for  a  new  trial,  but  Hart  denies  having  used  that  ex- 
pression, and  the  sting  of  accusation  is  answered. 

Alderson",  J.  This  rule  was  obtained  on  an  affidavit  that 
one  of  the  jurors  had,  before  he  entered  the  jury-box,  made 
up  his  mind  as  to  the  verdict  he  should  give,  and  if  that 
charge  had  remained  uncontradicted,  the  rule  must  have  been 
made  absolute.  But  the  whole  sting  of  the  charge  is  an- 
swered, and  though  the  expressions  which  the  juror  admits 
himself  to  have  used  were  imprudent,  yet,  his  entertaining  a 
strong  opinion  on  a  former  verdict  is  not  incompatible  with 
his  giving  a  correct  verdict  on  the  case  which  was  to  come 
before  him. 

There  was  no  reason  why  he  should  speak  in  a  significant 
way  to  mere  strangers,  and  there  is  nothing  in  the  language 
which  he  admits  which  would  lead  one,  independent  of  man- 
ner, to  assume  that  he  had  prejudged  the  verdict  he  Avas  him- 
self about  to  give.  Mule  discharged. 


14  CIVIL  MALPEACTICE. 

Meetz  v.  Detweliee.i 

Pee  Cueiam.  Under  the  circumstances  of  the  case,  evi- 
dence of  the  "  practice  of  physicians  in  regard  to  consulta- 
tions "  was  properly  admitted.  It  had  been  testified  that 
the  medical  gentlemen  called  in  by  the  plaintiff's  father  had 
met  in  consultation  without  notice  to  the  defendant,  who  was 
the  attending  physician,  or  desiring  his  presence,  and  they 
were  produced  as  the  plaintiff's  witnesses.  The  fact  that 
they  had  not  extended  to  him  the  customary  courtesy  due  to 
the  occasion,  therefore,  was  a  circumstance,  though  a  slight 
one,  tending  to  show  that  their  minds  were  biased  against 
him. 

But  the  measure  of  a  physician's  responsibility  for  his 
patient  is  not  a  subject  of  professional  skill.  Whether  the 
patient's  imprudence  in  disregarding  directions  led  to  an  ag- 
gravation of  the  disease,  may  be  otherwise ;  but  it  requires 
no  medical  skill  to  determine  that  a  man  is  not  chargeable 
with  the  consequences  of  another's  acts,  and  the  question 
allowed  to  be  put  belonged  not  so  much  to  medicine  as  to 
morals.  Besides  being  irrelevant,  these  fishing  questions 
always  contain  a  concealed  argument  which  it  would  be  im- 
proper for  the  witness  to  indorse.  The  answer  ought  not  to 
have  been  received. 

Of  the  same  stamp  was  the  testimony  of  the  defendant's 
general  skill,  which  was  clearly  irrelevant.  It  was  not  that, 
but  his  treatment  of  the  particular  case,  with  which  the  jury 
had  to  do.  If  the  latter  was  notoriously  bad,  of  what  ac- 
count would  be  his  abstract  science,  or  treatment  of  other 
cases  ?  It  may  be  said  that  his  general  qualifications  might 
serve  to  shed  light  on  the  propriety  of  his  practice  in  this 
particular  instance ;  but  it  is  light  which  would  be  less  likely 
to  lead  to  a  sound  conclusion  than  to  lead  astray.  The  jury, 
assisted  by  opinions  of  medical  witnesses,  would  be  better 
able  to  judge  of  the  treatment  from  the  treatment  itself, 
than  from  the  more  remote  consideration  of  the  defendant's 
1  8  Watts  &  Sergeant.  376. 


DEFINITIONS.  —  ETHICAL  MALPEACTICE.  15 

professional  reputation,  which  was  consequently  not  the  best 
evidence  of  which  the  case  was  susceptible.  The  nature 
and  properties  of  the  powders  employed  by  the  defendant  in 
this  particular  instance  were  subjects  of  medical  inquiry,  and 
proper  for  the  medical  witnesses  as  experts.  The  questions 
put  to  them  on  that  head  ought  to  have  been  answered. 
But  the  matter  which  was  probably  most  prejudicial  to  the 
plaintiff,  in  the  estimation  of  the  jury,  was  the  evidence  to 
prove  the  declarations  of  his  'prochein  amy^  before  he  had 
acted  as  such,  that  "  the  doctors  would  help  him  through," 
or  that  "  the  doctors  would  work  it  through."  The  plaintiff 
would  have  little  chance,  if  the  testimony  of  his  most  mate- 
rial witnesses  were  put  down  to  the  account  of  professional 
jealousy.  But  according  to  the  testimony,  these  declarations 
were  made  before  the  writ  was  purchased,  and  when  the  pro- 
chein amy  had  no  other  concern  in  the  contest  than  every 
father  has  in  the  welfare  of  his  child  ;  and  that  they  were 
not  competent  for  that  reason  is  stated  as  an  elementary 
principle  in  Greenleaf's  Evidence  (p.  211),  a  book  whose  ac- 
curacy is  surpassed  only  by  its  usefulness.  As  admissions  or 
confessions,  therefore,  these  declarations  were  incompetent. 
Judgment  reversed  and  venire  de  novo  awarded. 

The  subject  of  consultations  is  not  well  understood  by 
persons  outside  of  the  profession.  Among  practitioners  of 
the  different  schools  consultations  cannot  be  held,  for  the 
reason  that  there  is  a  radical  difference  between  them  either 
as  to  the  medicines  to  be  used  or  the  manner  of  using  them  ; 
hence,  if  the  practitioners  be  honest  in  their  several  beliefs, 
no  good  can  accrue  to  the  patient,  —  this  being  the  sole  object. 
The  Code  of  the  American  Medical  Association,  in  treating 
of  the  duties  of  physicians  in  consultations,  says :  "  A  reg- 
ular medical  education  furnishes  the  only  presumptive  evi- 
dence of  professional  abilities  and  acquirements,  and  ought 
to  be  the  only  acknowledged  right  of  an  individual  to  the 
exercise  and  honors  of  his  profession.  Nevertheless,  as  in 
consultations  the  good  of  the  patient  is  the  sole   object  in 


16  CIVIL   MALPRACTICE. 

view,  and  this  is  often  dependent  on  personal  confidence,  no 
intelligent  regular  practitioner,  who  has  a  license  to  prac- 
tise from  some  medical  board  of  known  and  acknowledged 
respectability,  recognized  by  this  association,  and  who  is  in 
good  moral  and  professional  standing  in  the  place  in  which 
he  resides,  should  be  fastidiously  excluded  from  fellowship, 
or  his  aid  refused  in  consultation,  when  it  is  requested  by  the 
patient.  But  no  one  can  be  considered  as  a  regular  practi- 
tioner or  a  fit  associate  in  consultation,  whose  practice  is 
based  upon  an  exclusive  dogma,  to  the  rejection  of  the  accu- 
mulated experience  of  the  profession,  and  of  the  aids  actually 
furnished  by  anatomy,  physiology,  pathology,  and  organic 
chemistry. 

"  In  consultations,  no  rivalship  or  jealousy  should  be  in- 
dulged ;  candor,  probity,  and  all  due  respect  should  be  exer- 
cised toward  the  physician  having  charge- of  the  case. 

"All  discussions  in  consultation  should  be  held  as  secret 
and  confidential.  ....... 

"  A  physician  who  is  called  upon  to  confeult  should  observe 
the  most  honorable  and  scrupulous  regard  for  the  character 
and  standing  of  the  practitioner  in  attendance.  The  prac- 
tice of  the  latter,  if  necessary,  should  be  justified  as  far  as  it 
can  be  consistently  with  a  conscientious  regard  for  truth,  and 
no  hint  or  insinuation  should  be  thrown  out  which  could  im- 
pair the  confidence  reposed  in  him,  or  affect  his  reputation. 
The  consulting  physician  should  also  carefully  refrain  from 
any  of  those  extraordinary  attentions  or  assiduities  which  are 
too  often  practised  by  the  dishonest  for  the  base  purpose  of 
gaining  applause,  or  ingratiating  themselves  into  the  favor  of 
families  and  individuals." 

It  will  be  seen  from  the  above  that  many  causes  intervene 
to  forbid  consultations  among  physicians,  all  resolving  them- 
selves into  the  one  leading  principle,  —  that  of  not  conducing 
to  the  welfare  of  the  patient. 


FRACTURES   NEAR   THE   SHOULDER-JOINT.  17 


CHAPTER  II. 

CIVIL  MALPRACTICE.  — ADJUDICATED  CASES  OF  ALLEGED 
MALPRACTICE  IN  THE  TREATMENT  OF  FRACTURES  NEAR 
THE  SHOULDER-JOINT. 

Civil  Malpractice  may  be  either  active  or  passive.  It  is 
active  when  a  certain  course  of  treatment  is  adopted  and  fol- 
lowed which  is  not  sustained  by  authority  ;  it  is  passive  when 
those  things,  in  the  treatment,  are  omitted,  which  should  have 
been  done,  in  order  to  obtain  a  result  approximating  to  per- 
fectness. 

In  declarations  the  plaintiff  usually  alleges  that  the  de- 
fendant is  either  ignorant,  that  is  unskilful ;  or  negligent, 
that  is  careless ;  or  that  he  is  both.  In  some  States,  when 
the  plaintiff  fails  to  sustain  the  allegation,  damages  are  as- 
sessed against  him  for  such  false  allegation,  and  as  a  com- 
pensation to  the  defendant  for  his  necessary  costs.  Walsh  v. 
Sa^re.  This  is  only  just  and  right,  and  it  is  to  be  hoped  that 
all  of  our  States  will  soon  have  the  same  equitable  laws  in 
their  statutes. 

The  law  on  responsibility  of  physicians  and  surgeons  is 
well  laid  down  in  Hilliard's  Law  of  Torts,  2d  ed.  vol.  i.  p.  253. 
As  it  covers  pretty  generally  all  the  points  alleged  in  cases 
of  malpractice,  I  will  transcribe  it  in  full.  He  says  :  "  Under 
some  circumstances,  a  physician  or  surgeon  will  be  held  very 
strictly  answerable  for  the  consequences  of  his  professional 
action  or  neglect.  Thus  it  is  held,  that  where  medicine  is 
administered  to  a  slave  without  the  consent  of  his  owner,  the 
physician  is  responsible  for  all  the  evil  consequences  which 
result  from  his  act.  So  an  action  lies  against  a  sui^geon  for 
gross  ignorance  and  want  of  skill,  as  well  as  for  negligence 

2 


18  CIVIL  ilALPRACTICE. 

and  carelessness ;  though  if  the  evidence  be  of  negligence 
only,  which  was  properly  left  to  the  jury,  and  negatived  by 
them,  the  court  will  not  grant  a  new  trial  because  the  jury 
were  directed  that  want  of  skill  alone  would  not  sustain  the 
action ;  but,  in  general,  a  physician  or  surgeon  is  responsible 
only  for  ordinary  or  reasonable  care  and  skill,  and  the  exer- 
cise of  his  best  judgment  in  matters  of  doubt,  not  for  a  want 
of  the  highest  degree  of  skill.  It  is  the  duty  of  the  patient 
to  cooperate  with  his  professional  ad^dser,  and  to  conform  to 
the  necessary  prescriptions  ;  but  if  he  will  not,  or  under  the 
pressure  of  pain  he  cannot,  he  has  no  riglit  to  hold  his  sur- 
geon responsible  for  his  own  neglect.  The  implied  contract 
of  a  surgeon  is  not  to  cure^  but  to  possess  and  employ,  in  the 
treatment  of  a  case,  such  reasonable  skill  and  diligence  as  are 
ordinarily  exercised  in  his  profession  by  thoroughly  educated 
surgeons  ;  and  in  judging  of  the  degree  of  skill  required,  re- 
gard is  had  to  the  advanced  state  of  the  profession  at  the 
time.  So  the  law  requires  of  a  dentist  a  reasonable  degree 
of  skill  and  care  in  his  professional  operations ;  and  he  will 
not  be  held  answerable  for  injuries  arising  from  his  want  of 
the  highest  attainments  in  his  profession.  So  a  physician  is 
expected  to  practise  according  to  his  professed  and  avowed 
system,  where  there  is  no  particular  system  established  or 
favored  by  law,  and  no  system  prohibited.  Hence,  in  an  ac- 
tion for  malpractice,  evidence  to  prove  that  the  defendant's 
treatment  of  the  case  was  according  to  the  botanic  system  of 
practice  and  medicine,  which  he  professed  and  was  known  to 
follow,  is  admissible." 

What  constitutes  "  ordinary  or  reasonable  care  and  skill," 
and  what  is  proof  of  it  ?  It  is  not  easy  to  say.  There  is  no 
standard,  as  yet,  of  comparison,  by  which  the  question  can  be 
governed.  We  have,  in  medicine,  no  court  of  ultimate  ap- 
peal. Each  individual  case  must  stand  upon  its  own  merits. 
Time  and  place  must  be  taken  into  consideration.  Reason- 
ably, as  much  cannot  be  expected  of  physicians  in  remote 
localities,  where  he  is  cut  off  from  opportunities  of  improve- 
ment, as  from  physicians  living  in  communities  where  oppor- 


FEACTUEES  NEAE  THE  SHOULDEE-JOINT.      19 

tunity  is  afforded  of  seeing  disease  and  accidents  under  more 
varied  forms  ;  nor  from  this  latter  class  should  as  hio-h  a  de- 
gree  of  attainments  be  exacted  as  from  physicians  connected 
with  large  hospitals,  or  who  reside  in  large  cities.  If  it  were 
otherwise,  we  should  find  but  few  physicians,  except  in  pop- 
ulous communities.  The  very  favoi-able  rule  has  been  laid 
down  in  the  law,  that  "  the  least  amount  of  skill,  therefore, 
with  which  a  fair  proportion  of  the  practitioners  of  a  given 
locality  are  endowed,"  is  taken  as  the  criterion  by  which  to 
judge  the  physician's  ability  or  skill."  Bouvier's  Inst.  §§ 
1004-5. 

In  proof  of  this  degree  of  attainment,  a  diploma  is  the  best 
evidence  ;  but  to  be  valid  it  must  be  proven  that  the  college 
from  which  it  emanated  had  corporate  authority  to  grant  de- 
grees in  medicine  at  the  date  of  giving  the  degree,  and,  if 
the  college  of  another  State,  its  act  of  incorporation  must  be 
offered  as  proof  of  its  authority  to  grant  such  a  degree.  Or- 
dronaux's  Jurisp.  of  Med.  26  ;  Hunter  v.  Blount^  27  Geor- 
gia, 76 ;  Sill  V.  Boddie,  2  Stewart  &  Porter,  56.  It  must 
be  borne  in  mind,  also,  that  courts  will  take  no  notice  of  the 
different  "schools  "  in  medicine,  the  term  "physician  "  being 
legally  assumed  by  an}'-  one  who-chooses  to  announce  himself 
as  a  practitioner  of  medicine.  Sutton  v.  Facey,  1  Mich. 
243.  The  law  recognizes  all  systems  as  legitimate ;  at  the 
same  time,  it  requires  the  physician  to  practise  according  to 
his  professed  and  avowed  system.  A  departure  from  the 
received  canons  of  a  given  system  will  be  taken  as  a  want  of 
ordinary  skill.  Bowmaii  v.  Woods^  1  G.  Greene  (Iowa), 
441  ;  Patten  v.  Wiggin,  51  Maine,  594. 

Cater  v.  Fernald.^ 

(C.  C.  Pleas  for  Strafford  County,  N.  H.) 

History.      On  the   26th  of  May,   1853,  Mrs.   Cater,  of 
Barrington,  rather   fleshy  and  muscular,  received   an  injury 
to  her  left  shoulder,  while  laboring  in  a  convulsion.     From 
1  Boston  Medical  and  Surgical  Journal,  vol.  liv.  p.  229. 


20  CIVIL   MALPEACTICE. 

the  testimony,  it  seems  that  she  had  taken  cedar  oil  some 
time  in  the  morning  of  that  day,  for  a  pain  in  the  stomach. 
She  was,  however,  encei7ite,  and  what  the  intention  was  in 
making  use  of  this  oil  does  not  appear.  In  a  short  time 
after  taking  this  substance,  Mrs.  C.  retired  to  her  chamber, 
and  soon  the  attention  of  the  husband  was  called  to  the 
critical  condition  of  his  wife.  In  a  few  minutes  medical  aid 
was  sent  for,  and  Dr.  McDaniel,  who  lived  but  a  short  dis- 
tance from  the  house  of  the  plaintiff,  came,  administered  an 
emetic,  and  awaited  the  arrival  of  Dr.  Fernald,  the  family 
physician.  The  messenger  who  called  Dr.  F.  represented 
Mrs.  C.  as  "  being  in  a  fit,  as  very  sick,  and  near  to  the 
point  of  death."  She  was  found  in  a  reclining  position, 
complaining  of  much  distress  at  the  stomach,  with  nausea. 
She  also  stated  to  her  physician  that  she  had  been  in  ill 
health  for  two  or  three  weeks  past,  had  had  a  violent  head- 
ache during  the  most  of  that  time,  and  had  taken  "  cedar  " 
for  it. 

It  was  not  fully  shown  that  the  defendant's  attention 
was  directed  by  the  patient  or  family,  during  his  first  visit, 
to  the  shoulder.  In  fact,  there  was  no  observable  irregu- 
larity in  the  motion  of  the  arm  at  this  time.  The  whole 
attention  of  physician  and  family  was  aimed  to  alleviate  the 
bodily  health  of  Mrs.  C.  The  next  day,  the  patient  com- 
plained of  pain  in  the  left  fore-arm  and  hand.  On  examina- 
tion, no  depression  was  observable  under  the  acromion  pro- 
cess, on  account  of  the  great  swelling  and  extravasation  of 
blood.  There  was  found  to  be  ecchymosis  over  a  large  sur- 
face on  the  outer  part  of  the  humerus,  which  extended  from 
within  two  or  three  inches  of  the  shoulder-joint  down  to  the 
elbow.  The  usual  roundness  of  the  shoulder  was  observed, 
and  the  depression  usually  attending  like  injuries  was  not 
seen  until  three  or  four  weeks  after  the  occurrence  of  this  ac- 
cident. Then  resort  was  made  to  the  usual  appliances  for 
such  injuries. 

Declaeatiof.  Defendant  was  the  family  physician  at 
the  time  of  the  injury;  that  instead  of  an  enlightened  treat- 


FRACTURES   NEAR   THE   SHOULDER-JOINT.  21 

ment  of  the  case  in  question,  lie  so  negligently,  carelessly, 
and  unskilfully  behaved  and  governed  himself  in  and  about 
the  setting,  cure,  and  treatment,  &c.,  &c.,  that  the  shoulder 
became  fixed  and  lodged  in  a  wrong  and  unnatural  place, 
^.  e.,  it  was  a  simple  dislocation  of  the  head  of  the  humerus 
downward,  and  was  so  left. 

ABSTRACT    OF   EVIDENCE, 

Plaintiff  testified,  that  "Dr.  Fernald's  attention  was  called 
to  the  state  of  the  shoulder  daring  the  first  visit ;  that  Mrs. 
C.  complained  of  pain  in  the  left  fore-arm  and  hand ;  that 
the  defendant  did  examine  the  hand  and  fore-arm,  then  the 
spine  by  making  pressure  thereupon  with  his  fingers  ;  that  in 
his  examination  he  made  the  inquiry  if  she  had  a  lame  back, 
and  if  it  hurt  her  in  making  the  pressure  —  to  which  she  re- 
plied in  the  negative.  Thereupon  the  defendant  stated  the 
cause  of  pain  in  the  arm  was  neuralgia." 

Other  witnesses  agreed  that  Mrs.  C.  located  all  her  dis- 
tress and  pain  in  the  arm,  and  none  in  the  shoulder.  Arm 
and  hand  were  bathed  in  mustard  and  vinegar.  A  cataplasm 
was  placed  between  the  shoulders  (for  the  headache),  and  a 
liniment  was  left,  with  some  pills  and  quieting  powders,  to 
be  used  in  the  absence  of  Dr.  F.,  who  resided  about  three 
miles  distant  from  plaintiff. 

Dr.  Perry  testified,  that  "he  saw  the  plaintiff  about  six 
weeks  after  the  injury  ;  made  such  an  examination  as  he 
usually  makes  in  such  injuries.  The  best  judgment  that  he 
could  form  at  the  time  was,  that  it  was  a  dislocation  of  the 
humerus  downwards.  He  told  the  plaintiff  he  thought  he 
could  reduce  it  then,  but  she  refused.  He  did  not  discover 
any  indication  of  fracture  at  that  time ;  if  so,  he  would  not 
have  attempted  to  reduce  it.  It  is  more  difficult  to  treat  a 
case  when  there  is  a  fracture  of  the  head  of  the  bone,  because 
it  might  be  almost  impossible  to  keep  the  humerus  in  its 
proper  place. 

"  In  a  dislocation  downwards,  the  arm  cannot  be  brought 
down  close  to  the  body.     In  the  course  of  from  twelve  to 


22  CIVIL   ilALPEACTICE. 

twenty-four  liours  after  an  injury,  there  would  be  considera- 
ble inflammation,  and  in  a  little  while  the  parts  would  be 
somewhat  thickened.  It  is  better  to  reduce  dislocations  soon 
after  the  injury,  as  delay  only  increases  the  difficulty  of  re- 
duction. Ordinarily  dislocations  downwards  are  easily  put 
in  place,  but  sometimes  other  complications  arise,  and  the 
contrary  is  true. 

"  Since  the  commencement  of  this  court,  he  had  again  ex- 
amined the  shoulder  of  Mrs.  C,  and  found  the  same  state  of 
the  parts  as  existed  at  first.  His  opinion  now  is,  that  it  is  a 
dislocation  downwards,  and  no  fracture  of  the  head  of  the 
humerus.  He  found  without  doubt  the  head  of  the  hume- 
rus in  the  axilla,  and  it  is  impossible  to  effect  a  cure  after 
this  length  of  time. 

"  If  any  fracture  existed  at  all,  it  must  have  been  a  por- 
tion of  the  glenoid  cavity.  It  would,  however,  take  a  con- 
siderable force  to  break  the  joint  within  the  glenoid  cav- 
ity. He  had  doubts  as  to  its  integrity.  The  mere  finding 
the  head  of  the  humerus  in  the  axilla  is  no  indication  that 
there  is  no  fracture  in  this  instance.  If  violence  enough 
had  been  used,  he  should  suspect  a  fracture.  When  the 
muscles  are  contracted,  they  hold  the  bones  so  firmly,  that  a 
force  apjilied  to  the  outside  of  the  arm  would  be  likely  to 
fracture  the  neck  of  the  scapula.  The  piece  of  bone  broken 
off  would  be  found  near  the  end  of  the  humerus. 

"  If  the  arm  in  this  case,  when  put  in  its  place,  would  slip 
down  again  as  soon  as  left  to  itself,  this  would  indicate  a 
fracture  of  the  glenoid  cavity,  or  great  relaxation  of  the 
capsular  ligament ;  or  that  in  returning  the  head  of  the 
humerus,  there  was  carried  with  it  a  portion  of  the  torn  liga- 
ment. In  the  early  stages  of  the  injury,  the  last  is  the  most 
common  cause.  This  difficulty,  however,  may  be  overcome 
by  repeated  trials  to  place  the  bone  in  its  proper  place.  It 
would  be  impossible  to  find  the  fractured  piece  of  bone,  if 
the  fracture  was  in  the  glenoid  cavity. 

"  In  the  examination  at  this  time,  he  found  that  the  arm 
could  be  ra,ised  to  a  position  nearly  horizontal  with  the  body. 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      23 

Its  use  will  gradually  improve,  and  Mrs.  C.  will  be  enabled 
to  perform  manual  labor  therewith,  without  much  incon- 
venience." 

Dr.  Townsend  testified :  "I  have  seen  in  the  course  of  my 
practice  a  large  number  of  dislocations  of  the  shoulder-joint 
—  those  attended  with  fracture,  and  those  that  were  not. 
Fracture  of  the  glenoid  cavity  is  of  rare  occurrence,  and  does 
not  take  place  without  very  great  and  direct  force,  either  by 
falling  on  the  humerus,  or  from  a  direct  blow.  If  a  person 
were  in  a  fit  on  a  bed,  and  another  person  were  holding  the 
arms,  I  do  not  see  how  this  cavity  could  be  broken  through. 
It  is  very  improbable  that  a  fracture  would  happen,  either  to 
the  head  of  the  humerus  or  neck  of  the  scapula,  by  '  thrash- 
ing about  in  a  convulsion.'  The  lower  part  of  the  glenoid 
cavity  may  be  broken  off ;  and  in  such  a  case  the  reduction 
of  the  arm-bone  would  be  easier,  but  the  motion  would  be 
less  free  after  a  cure.  I  have  had  cases  supposed  to  be  frac- 
ture of  this  cavity,  but  have  had  no  difficulty  in  keeping  the 
parts  in  apposition  by  the  proper  application  of  pads  and 
splints.  I  remember  a  case  of  dislocation  and  fracture,  either 
of  the  glenoid  davity  or  anatomical  neck  of  the  humerus. 
Dr.  J.  C.  Warren  had  the  charge  of  it.  I  cannot  distinctly 
recollect  the  result.  There  was  a  difficulty,  however,  in 
keeping  the  bones  in  their  place. 

"  I  have  made  two  examinations  of  this  shoulder  to  ascer- 
tain the  present  state  of  the  parts  :  one  in  the  Massachusetts 
General  Hospital,  and  one  during  the  session  of  this  court. 
It  appears  to  me  that  this  is  a  case  of  simple  dislocation 
downwards.  I  think  the  neck  of  the  scapula  has  not  been 
fractured.  I  am  sure  of  it.  Neither  could  the  anatomical 
neck  of  the  humerus  have  been  fractured,  because  it  would 
have  remained  in  the  glenoid  cavity  ;  and  besides,  I  find  it 
now  lodged  in  the  axilla.  If  the  head  had  been  fractured,  I 
could  discover  it.  My  opinion  is,  that  no  such  fracture  ever 
existed  in  this  case.  The  shoulder  in  its  present  condition 
is  incui-able,  because  a  bony  adhesion  has  taken  place  be- 
tween the  humerus  and  scapula.     The  head  of  the  bone  is 


24  CIVIL  MALPRACTICE. 

rather  below  the  neck  of  the  scapula,  between  it  and  the 
ribs. 

"  Ordinarily,  there  is  no  difficulty  in  coming  to  a  correct 
diagnosis  in  regard  to  the  fact  of  a  dislocation.  There  is 
generally  pain  and  numbness  in  the  fore-arm  and  hand.  Sim- 
ple dislocation  is  discoverable  by  the  sight  alone.  Its  most 
sure  sign  is,  the  inability  to  put  the  hand  on  the  top  of  the 
head. 

"  In  regard  to  the  question  of  reduction,  the  sooner  it  is 
done  the  better.  Swelling  and  inflammation  would  delay  the 
attempt  to  reduce.  A  dislocation  may  be  reduced  after  three 
months,  perhaps  longer.  That  is  the  longest  time  I  have 
known  in  my  practice.  When  a  dislocation  has  existed 
twenty-one  days,  the  effusion  of  lymph  into  the  socket  would 
be  a  very  slight  impediment  to  the  humerus  staying  in  its 
place.  If  extension  had  been  applied  after  three  weeks  in  a 
case  of  fracture,  and,  after  three  weeks  more,  extension  were 
again  applied,  no  bony  adhesion  would  be  found." 

Cross-examined.  "  The  external  appearances  of  a  frac- 
ture of  the  glenoid  cavity,  or  of  the  anatomical  neck,  are  not 
different  from  those  of  a  simple  dislocation.  The  arm  would 
hang  close  by  the  side,  and  would  be  shorter  in  case  of  frac- 
ture. I  believe  the  arm  would  be  shortened,  if  dislocated 
into  the  axilla ;  but,  on  my  honor,  I  cannot  tell.  In  this 
case  it  is  impossible  to  state  exactly  where  the  head  of  the 
humerus  is.  Lapse  of  time  would  render  it  also  difficult  to 
say  whether  there  has  been  a  fracture  or  not.  There  may 
have  been  one,  or  there  may  not.  But  if  the  arm-bone, 
when  put  back  into  its  place,  would  not  stay  there,  it  indi- 
cated a  fracture  of  some  sort,  because  the  symptoms  could 
not  be  explained  otherwise.  In  addition,  if  there  were  crepi- 
tus, it  would  overrule  any  opinion  I  can  form  in  examination 
of  the  case  now." 

The  testimony  of  the  other  experts  for  the  prosecution 
does  not  materially  differ  from  that  given.  They  all  agree 
that  it  was  a  simple  dislocation,  and  to  account  for  the  short- 
ening of  the  arm,  they  say  the  action  of  the  muscles  about 


FEACTUEES  NEAE  THE  SHOULDEE-JOINT.      25 

the  shoulder  drew  the  neck  of  the  humerus  in  between  the 
neck  of  the  scapula  and  ribs,  —  a  state,  in  the  opinion  of  the 
reporter  of  the  case,  entirely  untenable  and  contrary  to  au- 
thority. 

"  The  prosecution  also  endeavored  to  show  that,  if  there 
was  a  fracture,  it  was  made  in  the  attempt  to  reduce  the  dis- 
location by  '  Jarvis's  Adjuster.'  Dr.  Townsend's  testimony 
on  this  point  is  as  follows  :  '  The  power  of  this  adjuster  is 
very  great.  We  have  considered  it,  in  the  hospital,  as  a  dan- 
gerous instrument,  and  it  has  not  been  used  with  us  for  live 
or  six  years.  The  pulley  is  used  instead.  I  should  infer,  if 
there  was  a  snap  in  the  shoulder  at  the  time  of  reduction, 
that  a  fracture  must  have  been  produced  by  the  use  of  this 

great  power.' " 

FOE   DEFENDANT. 

"  The  statement  of  the  defendant  was,  that  his  attention 
was  not  called  to  the  arm  at  all  during  the  first  visit,  and  if 
it  had  been,  nothing  could  have  been  done ;  that  when  he 
saw  Mrs.  Cater  the  second  time,  the  shoulder  was  so  swollen 
and  inflamed  that  it  was  impossible  to  diagnose  the  true  state 
of  the  parts,  an'd  that  it  was  injudicious,  on  account  of  the 
inflammation,  to  disturb  the  arm ;  that  in  addition  to  a  dis- 
location, there  was  a  fracture  in  and  about  the  shoulder-joint, 
which  rendered  it  impossible  to  keep  the  parts  in  apposition ; 
that  the  patient  complained  of  no  difficulty  in  the  shoulder, 
but  located  her  distress  in  the  elbow  and  arm  ;  that  as  soon 
as  a  depression  was  observed  below  the  acromion  process, 
such  appliances  were  used  as  the  nature  of  the  case  de- 
manded." 

Dr.  James  Farrington  testified  :  "  I  have  been  in  practice 
as  a  physician  and  surgeon  forty  years,  and  have  had  a  large 
number  of  surgical  cases.  I  have  seen  this  shoulder  twice 
before,  —  once  about  three  weeks  after  the  injury,  and  once 
during  this  trial.  The  first  time  I  knew  of  it  was  from  the 
husband  of  Mrs.  C.  He  informed  me  that  his  wife  had  in- 
jured her  shoulder,  and  it  might  be  out  of  place  ;  that  the 
accident  happened  while  she  was  in  a  fit,  in  consequence  of 


26  CIVIL  MALPEACTICE. 

her  striving  and  thrashing  about,  during  which  he  had  as 
much  as  he  could  do  to  keep  her  on  the  bed.  He  also  said 
that  she  was  unaccustomed  to  have  convulsions,  and  it  was 
occasioned  b}^  taking  a  teaspoonful  of  cedar  oil.  I  said  to 
him,  that  since  prosecutions  were  rife,  I  had  made  up  my 
mind  not  to  practise  much  more  surgery.  In  reply  to  my 
remarks,  he  said  he  had  not  the  slightest  intention  of  pros- 
ecuting Dr.  Fernald,  or  any  one  else,  as  no  blame  could  be 
attached  to  any  one ;  that  at  first  the  arm  of  his  wife  was 
very  painful  near  the  elbow,  and  had  been  all  the  while 
much  swollen,  and  that  the  defendant's  attention  was  not 
directed  to  the  shoulder  until  a  few  days  previous.  I,  how- 
ever, agreed  to  go.  This  was  twenty-two  days  after  the 
injury.  When  I  first  saw  it  there  was  a  ba,ndage  over  the 
right  shoulder,  which  supported  the  elbow  of  the  lame  limb, 
and  also  a  pad  under  the  arm.  The  arm  hung  down  by  the 
side  in  a  manner  I  had  never  seen  before  in  dislocations, 
but,  from  its  appearance,  and  the  slight  depression  near  the 
acromion  process,  I  judged  it  a  simple  dislocation  into  the 
axilla.  I  found  the  arm  very  tender  and  swollen,  and  would 
not  bear  to  be  handled  much.  Mrs.  Cater  informed  me  in 
regard  to  the  same  particulars  as  her  husband  did  at  my 
residence,  with  the  addition  that  leeches  and  soothing  appli- 
cations had  been  applied  to  the  arm  in  order  to  reduce  the 
swelling.  At  first  I  proposed  to  the  family  to  delay  the 
attempt  at  reduction  until  the  swelling  and  soreness  disap- 
peared. This  was  objected  to.  I  then  made  a  more  thor- 
ough examination.  I  raised  the  arm  up,  and  tried  to  find 
the  head  of  the  humerus,  but  could  not.  I  was  aware  that 
it  might  be  difficult,  from  the  thickening  about  the  joint  of 
the  shoulder. 

"  After  the  usual  preparations,  extension  was  made,  and 
soon  the  depression  was  gone,  and  the  appearance  of  the 
joint  became  natural.  After  slackening  a  little,  I  remarked, 
'  I  believe  it  is  in,'  but  soon  found  the  soundness  to  disap- 
pear in  taking  my  hand  from  the  axilla.  Again  I  ordered 
extension,  and  the  same  appearances  were  noticed  as  before. 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      27 

The  arm-bone  came  into  place.  On  moving  the  arm,  I  felt 
a  crepitus,  like  the  grating  of  the  ends  of  two  broken  bones. 
I  pointed  this  out  to  the  medical  gentlemen  present,  and 
they  observed  the  same  thing.  The  lame  arm  then  was 
moved  backwards  and  forwards,  up  and  down.  She  put  her 
hand  behind  her  head.  All  this  time  I  felt  a  crepitus,  and 
heard  it.  I  was  confident  of  a  fracture,  either  of  the  glenoid 
cavity  or  some  portion  of  the  neck  of  the  bone.  I  thought 
then,  as  I  do  now,  that  the  injury  was  incurable.  The  ex- 
amination of  to-day  confirms  my  opinion. 

"  It  was  agreed  upon,  as  the  most  suitable  treatment,  to 
support  the  shoulder  by  a  bandage,  and  place  a  pad  under 
the  arm.  When  this  was  done,  the  shoulder  at  first  ap- 
peared natural  and  its  roundness  restored  ;  but  before  I  left, 
the  humerus  had  settled  down  and  the  depression  again  was 
observed.  I  then  remarked  that  the  shoulder  was  not  right, 
but  was  as  well  as  it  could  be. 

"  Fracture  of  the  head  of  the  humerus  might  occur  by 
falHng  on  the  shoulder,  or  by  having  a  heavy  weight  pass 
over  it.  A  piece  may  be  broken  off  the  glenoid  cavity  by 
a  less  force  than  is  required  to  break  the  head  of  the  os 
humeri. 

"  There  may  be  crepitus  in  a  simple  dislocation,  but  not 
always.  This  is  confined  to  the  ligaments  and  cartilages, 
and  is  soon  destroyed.  It  will  cease  by  friction  of  the  parts. 
I  do  not  believe  there  can  be  a  case  of  fracture  of  the  glenoid 
cavity,  or  the  head  of  the  arm-bone,  without  the  discovery 
of  crepitus,  if  proper  examination  be  made. 

"  In  this  case  I  do  not  feel  the  end  of  the  arm-bone.  It 
is  far  up  in  the  axilla,  under  and  a  little  inside  of  the  neck 
of  the  scapula.  The  arm  is  shortened.  This  is  caused  by 
either  the  fracture  of  the  glenoid  cavity,  or  the  splitting 
through  of  the  head  of  the  humerus.  After  this  length  of 
time,  it  is  impossible  to  tell  which  has  occurred.  If  there 
had  been  an  attempt  to  reduce  this  dislocation  five  minutes 
after  the  injury,  it  could  not  have  been  accomplished,  and 
the  parts  retained  in  their  place." 


28  CIVIL   MALPRACTICE. 

Lr.  Farrington^  Jr.,  confirmed  the  above  testimony  in 
every  particular. 

Br.  Thompson  testified  :  "  I  have  been  a  practising  physi- 
cian and  surgeon  for  thirty-four  years,  and  have  had  a  large 
number  of  dislocations  of  the  shoulder- joint.  I  saw  Mrs. 
Cater 's  shoulder,  at  Dover,  six  weeks  after  the  injury.  I 
pronounced  it  a  simple  dislocation  downward.  The  arm 
was  one  half  inch  shorter  than  the  other,  and  the  head  of 
the  bone  forward,  and  higher  up  in  the  arm-pit  than  usual 
in  cases  of  dislocation  into  the  axilla.  I  discovered  no  crepi- 
tus, nor  any  signs  of  a  fracture  at  this  time. 

"  I  was  asked  if  anything  could  be  done  for  the  shoulder. 
I  replied,  the  only  thing  was  to  attempt  a  reduction,  and 
agreed  to  go  to  Barrington  the  next  day,  with  Dr.  Pray, 
for  that  purpose.  Accordingly  I  went.  After  giving  the 
patient  chloroform,  and  making  the  usual  preparations,  I  at- 
tempted to  reduce  the  dislocated  bone.  I  made  use  of  '  Jar- 
vis's  Adjuster.'  In  making  a  very  slight  extension,  a  faint 
noise  was  heard,  like  the  breaking  up  of  a  bony  adhesion. 
This  attracted  no  attention,  as  it  was  much  less  than  the 
well-known  sound,  often  heard,  on  the  return  of  the  humerus 
to  the  socket.  The  force  used  was  very  slight,  —  not  enough 
to  fracture  any  bone.  After  continuing  the  extension  a  little 
while  longer,  the  arm  moved  more  freely,  and  went  up  easily 
into  its  place,  and  the  roundness  of  the  shoulder  was  re- 
stored. On  slackening  the  extension,  I  found  the  bone  to 
fall  down,  and  it  appeared  as  at  first.  After  several  at- 
tempts to  reduce  it,  but  to  no  purpose,  we  abandoned  the 
thing  altogether,  being  destitute  of  any  further  means  to 
produce  insensibility,  and  the  patient  complaining  of  great 
pain  in  the  shoulder. 

"  At  this  stage,  wishing  to  satisfy  myself  about  the  shoul- 
der, I  made  some  further  examination,  and  found  true  crepi- 
tus, although  the  arm  was  much  swollen.  I  wished  Dr.  Pray 
to  examine  the  parts.  He  did  so,  and  also  discovered  it.  I 
not  only  felt  it,  but  heard  it.  It  caused  the  sensation  of  the 
fractured  parts  of  two  bones  rubbing  together.     It  could  not 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      29 

be  false  crepitus  ;  of  that  I  am  sure.  I  came  to  the  conclu- 
sion, then,  that  there  was  fracture,  either  of  the  glenoid 
cavity  or  the  anatomical  neck  of  the  arm-bone,  but  could  not 
say  which.     Both  conditions  are  incurable. 

"  The  next  time  I  made  an  examination  of  this  shoulder 
was  with  Dr.  Pray,  in  the  month  of  February,  1855.  The 
same  appearances  were  found,  with  the  exception  of  a  slight 
pain  on  motion  of  the  arm,  near  the  coracoid  process.  I  was 
confirmed  in  the  opinion  that  there  was  a  fracture ;  that  the 
cause  of  this  pain  was  from  a  portion  of  the  fractured  bone, 
and  that  the  head  of  the  humerus  was  the  injured  part.  In 
this  connection  I  would  say,  that  in  neither  of  my  four  ex- 
aminations have  I  been  able  to  ascertain  whether  the  head 
of  the  humerus  is  entire  or  not.  My  own  impression  is  that 
no  one  can  tell. 

"  Sometimes,  in  convulsions,  the  muscles  themselves  will 
break  the  bones.  Frequently  fractures  are  produced  by  sim- 
ply falling  on  the  floor  in  a  fit.  I  think  it  very  possible 
that  this  shoulder  might  be  both  fractured  and  dislocated  by 
another  person  attempting  to  hold  Mrs.  Cater  on  the  bed, 
especially  in  a  convulsion  where  there  is  great  rigidity  and 
contraction  of  the  muscular  system.  I  was  told  by  the  fam- 
ily that  she  was  in  a  fit  when  this  injury  was  sustained." 

Br.  H.  Gr.  Clark  testified :  "  I  have  seen  a  large  number 
of  dislocations  and  several  fractures  of  the  shoulder-joint. 
Dislocations  are  very  common  and  easily  treated.  Fractures 
of  the  socket  and  upper  end  of  the  humerus  are  very  impor- 
tant and  difficult.  They  are  also  difiicult  to  distinguish,  at 
times,  from  simple  dislocations,  where  they  are  both  com- 
bined. The  usual  fractures  of  the  shoulder  are,  that  of  the 
glenoid  cavity,  of  the  acromion  process,  and  of  the  head  of 
the  humerus.  Sometimes  there  is  a  split  of  the  os  humeri 
through  the  anatomical  neck,  which  is  very  difficult  to  deter- 
mine. 

"  There  are  several  marks  of  a  fracture  about  the  shoulder- 
joint  (I  speak  particularly  of  the  glenoid  cavity  and  the  head 
of  the  humerus). 


30  CIVIL  MALPRACTICE. 

"  One  is  extensive  swelling  and  inflammation.  If  the 
bones,  when  put  in  place  by  extension,  will  not  stay  there, 
this  indicates  a  fracture,  because  in  dislocations  alone  there 
is  no  difficulty  in  this  respect.  There  is  no  trouble  in  telling 
when  a  bone  is  in  place.  If  it  should  not  remain  after  the 
steadying  force  is  removed,  but  slips  down,  it  would  show 
that  there  must  be  some  break  in  the  region  of  the  socket. 
In  addition,  if  there  is  crepitus,  this  completes  the  evidence 
of  fracture. 

"  True  crepitus  is  always  an  indication  of  fracture.  In- 
deed, it  is  one  of  the  strongest  evidences  of  it.  To  produce 
it,  parts  of  broken  bone  must  be  in  contact.  Sometimes 
there  is  a  false  crepitus,  but  the  rubbing  together  of  cartilage 
is  smoother  than  the  grating  of  bones.  It  is  true  there  might 
be  cases  where  a  person  would  require  to  repeat  the  rubbing 
to  find  out  which  kind  of  crepitus  existed ;  but  in  any  case 
there  is  no  danger  of  mistaking  the  one  kind  for  the  other. 

"  I  have  examined  the  shoulder  of  the  complainant  to-day. 
After  so  great  a  lapse  of  time,  it  is  much  more  difficult  to 
determine  what  the  injury  was.  She  has  received  a  very 
extensive  injury,  and  it  must  have  been  done  by  a  very  de- 
cided force.  She  has  a  displacement  of  the  arm-bone,  and  it 
is  fixed  in  an  unnatural  position.  If  there  is  any  motion  be- 
tween the  arm  and  scapula,  it  is  very  slight.  It  seems  to  be 
more  fixed  than  it  would  be  if  the  original  injury  were  a 
simple  dislocation.  From  the  position  of  the  arm,  there  is 
evidence  of  a  fracture  somewhere  about  the  socket.  The 
head  of  the  humerus  is  thrown  forward  and  upward  so  as 
to  be  nearly  where  the  coracoid  process  is.  It  appears  as  if 
the  socket  had  been  crushed  inward  and  the  arm  driven  in 
with  it.  It  would  be  impossible  to  determine  exactly  what 
the  injury  was,  without  dissection.  I  have  no  doubt  there 
was  a  fracture  there.  The  position  of  the  arm-bone  seems 
to  be  incompatible  with  the  integrity  of  the  glenoid  cavity. 
The  piece  of  bone  broken  off  appears  to  be  carried  in  before 
the  arm-bone,  or  it  may  be  bent  like  a  hinge,  or  drawn  under 
the  scapula,  so  as  to  be  out  of  reach.   I  do  not  think  the  ana- 


FRACTUKES  NEAR  THE  SHOULDER-JOINT.      31 

tomical  neck  has  been  fractured.  The  head  of  the  humerus 
may  have  been  split  through  in  that  direction. 

"In  ordinary  cases  of  persons  in  middle  life,  it  must  require 
considerable  foi'ce  to  produce  a  fracture  of  the  glenoid  cavity, 
—  as  a  fall  from  the  bed  upon  the  floor,  or  a  blow  with  a  stick 
of  wood  in  a  person's  hand.  There  would  be  marks  of  ex- 
ternal injury,  but  it  might  not  be  visible  for  two  or  three 
days.  There  would  be  discoloration  of  the  arm  below  the 
seat  of  injury,  from  one  third  to  one  half  way  down  to  the 
elbow.  It  is  quite  possible  that  such  an  injury  might  be 
produced  in  a  state  of  spasm,  by  a  person  endeavoring  to  hold 
another  on  a  bed,  though  most  likely  it  would  occur  by  a  fall 
or  blow  on  the  bedstead.  Such  a  fracture  might  exist  from 
a  fall  on  the  hand.  I  do  not  know  why  I  should  suspect  luxa- 
tion of  the  shoulder-joint  simply  from  pain  in  the  hand  and 
fore-arm.  In  some  cases  of  fracture,  there  is  not  much  pain, 
but  rather  an  uneasiness,  which  is  most  apparent  immediately 
after  an  injury.  In  simple  dislocation  downward,  the  pain 
is  very  severe,  mostly  in  the  arm -pit  and  down  the  arm. 
There  would  be  scarcely  any  swelling  until  after  some  days. 
If  pain  should  'be  in  the  shoulder,  it  would  arrest  the  sur- 
geon's attention,  as  being  the  place  of  injury. 

"  In  dislocations  downward,  the  arm  is  lengthened ;  in 
fracture  of  the  neck  of  the  humerus  it  is  shortened,  and  the 
arm  will  hang  by  the  side. 

"  Dislocations  may  be  reduced  after  four  months,  I  re- 
duced one  at  the  end  of  that  time,  in  which  the  glenoid  cavity 
was  in  a  natural  state,  as  free  and  clear  as  it  ever  was." 

Dr.  Martin'' s  testimony  coincided  with  that  of  the  other 
witnesses  for  the  defence.  He  believed,  however,  the  injury 
to  be  dislocation  and  fracture  of  the  head  of  the  humerus. 

Dr.  Pray,  who  reports  the  case,  states  that  when  he  first 
examined  the  shoulder  (at  the  end  of  the  sixth  week),  it 
•'had  lost  its  accustomed  roundness.  The  acromion  process, 
though  unnaturally  prominent,  did  not  project  as  much  as 
usual  in  displacements  of  the  humerus  into  the  axilla.  The 
arm  hung  down  by  the  side,  and  did  not  project  from  the 


32  CIVIL  MALPRACTICE. 

body.  In  fact,  there  was  notliing  that  indicated  a  disloca- 
tion, but  the  slight  depression  below  the  acromion  process, 
and  that  so  very  small  as  scarcely  to  attract  notice.  It  was 
found  difficult,  and  even  impossible,  to  pass  the  fingers  under 
and  around  the  head  of  the  humerus,  on  account  of  the  swell- 
ing, even  when  extension  was  made.  In  the  several  exami- 
nations to  find  out  the  true  state  of  the  parts,  we  could  not 
ascertain  if  the  head  of  the  humerus  was  entire  or  not.  The 
inner  part  of  the  humerus  occupied  a  place  between  the  ribs 
and  the  glenoid  cavity.  As  far  as  could  be  discovered,  the 
entire  head  of  the  humerus  was  dislodged  from  the  socket. 
The  situation  of  the  fracture  seemed,  to  all  the  physicians 
who  detected  it,  to  be  exterior  to  the  glenoid  cavity.  The 
fracture  appeared  to  be  an  inch  and  a  half  in  length." 

The  following  is  the  substance  of  the  instructions  of  the 
court,  Sakgeistt,  J.  : 

The  law  requires.of  a  man  who  offers  his  services  in  any 
profession,  three  things  :  that  reasonable  degree  of  learn- 
ing, skill,  and  experience,  ordinarily  possessed  by  others  of 
his  profession ;  reasonable  and  ordinary  care  in  the  treatment 
of  the  case  committed  to  him ;  and  the  exercise  of  his  best 
judgment  in  cases  of  doubt.  Story,  in  his  work  on  Bail- 
ments, defines  ordinary  diligence  and  care  to  be  that  degree 
of  care  which  men  generally  employ  in  their  own  concerns. 
All  engage  for  the  exercise  of  ordinary  care  in  a  profession. 
A  physician  does  not  engage  to  warrant  and  effect  a  perfect 
cure.  The  rule  is,  where  both  parties  are  benefited  by  a 
contract,  they  shall  use  such  skill  and  diligence  as  men  of 
common  prudence  employ  ;  not  such  as  belongs  to  every  pru- 
dent or  skilful  person.  Few  cases  of  surgery  are  alike,  and 
judgment  is  required  in  the  treatment  of  them.  The  law 
does  not  require  freedom  from  errors  of  judgment.  The 
employer  has  to  exercise  judgment,  too,  in  the  selection  of 
the  professional  man ;  and  in  cases  of  reasonable  doubt,  none 
are  held  responsible  for  errors  in  judgment,  nor  for  mistakes 
committed  with  ordinary  care  and  skill. 

Now,  diseases  are  rendered  different  by  influences  of  char- 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      33 

acter  and  habit,  and  by  constitutional  and  natural  causes. 
When  the  jury  are  satisfied  of  reasonable  skill  and  care,  that 
is  sufficient.  To  show  the  want  of  skill  and  negligence,  it  is 
never  enough  to  prove  that  the  physician  has  not  treated  in 
that  mode,  nor  used  those  measures  which,  in  the  opinion  of 
other  medical  men,  the  case  required.  This  alone  is  not  evi- 
dence of  want  of  skill  and  care.  The  plaintiff  must  go  fur- 
ther, and  show  that  defendant  had  not  the  requisite  qualifi- 
cations, or  did  not  use  them. 

Verdict  for  defendant. 


BAERD    v.    MORFORD.l 

Opinion  by  Beck,  J.  The  issues  presented  by  the  plead- 
ings appear  simply  and  easily  comprehended,  and  in  our 
opinion  afforded  little  occasion  for  confusion  in  presenting 
them  to  the  jury  and  uncertainty  in  the  result  of  the  trial. 
The  plaintiff  claims  for  services  as  a  surgeon  and  physician 
in  reducing  a  fracture  of  defendant's  arm,  and  other  medical 
attention  and  treatment.  The  defendant  admits  the  em- 
ployment of  the  plaintiff,  but  avers  it  to  have  been  to  treat 
a  fracture  of  the  arm  and  a  dislocation  of  the  shoulder-joint 
and  other  injuries,  and  claims  he  is  not  entitled  to  recover 
on  account  of  negligence  in  not  reducing  the  dislocation.  As 
a  cross-demand,  defendant  claims  damages  on  account  of 
such  negligence  of  the  plaintiff.  Now  it  is  evident  that, 
under  the  pleadings,  the  issues  presented  are  these  :  First. 
The  existence  of  the  dislocation.  Second.  Plaintiff's  negli- 
gence, in  failing  to  reduce  it,  and  negligence  in  reducing  the 
fracture. 

Upon  the  pleadings  there  is  no  issiie  found  as  to  the  exist- 
ence of  the  fracture.  It  is  averred  by  plaintiff  and  admitted 
by  defendant ;  collateral  issues  as  to  the  employment  of 
plaintiff,  value  of  his  services,  and  damages  sustained  by  de- 
fendant make  no  figure  in  the  case  and  need  not  be  noticed. 
Now  the  dispute  between  the  parties  resolves  itself  into  these 

1  29  Iowa,  531. 


34  CIVIL  MALPRACTICE. 

simple  questions  :  Was  defendant's  slioulder-joint  dislocated? 
Was  plaintiff  negligent  and  unskilful  in  treating  it  and  in 
treating  the  fracture  ? 

The  record  discloses  that  in  order  to  lead  the  jury  to  the 
consideration  of  these  simple  and  main  issues  in  the  case, 
about  thirty  instructions  were  given  them  by  the  court 
(upon  the  request  of  which  party  it  does  not  appear),  and 
they  were  required  to  return  thirteen  special  findings  in  an- 
swer to  eleven  questions  submitted  to  them  on  request  of 
plaintiff,  and  two  on  request  of  defendant.  Sixteen  instruc- 
tions asked  by  plaintiff  the  court  refused  to  give  to  the  jury. 

It  is  not  surprising  that  after  all  this  was  done,  a  certain 
degree  of  confusion  and  uncertainty  is  found  in  the  record, 
and  what  was  a  very  simple  case  is  made  to  present  diverse 
points  that  otherwise  would  not  have  arisen. 

The  omission  of  plaintiff  to  except  to  instructions  relieves 
the  case  of  many  questions  made  upon  them  in  the  assign- 
ment of  errors. 

Upon  the  trial  of  the  cause,  defendant,  against  the  objec- 
tion of  plaintiff,  was  permitted  to  introduce  evidence  to 
prove  that  his  arm  was  not  fractured.  The  admission  of  this 
evidence  is  the  ground  of  the  first  objection  of  plaintiff,  who 
insists  that  the  evidence  was  inadmissible,  because  the  fact 
that  defendant's  arm  was  fractured  is  admitted  by  the 
pleadings,  and  cannot  be  contradicted  by  the  evidence.  The 
view  of  the  court  seems  to  have  been,  that  in  the  trial  of  the 
action  on  the  cross-demand  the  evidence  was  admissible ;  but 
was  not  competent  upon  the  trial  of  plaintiff's  claim  regard- 
ing the  case  as  involving,  in  fact,  two  separate  and  distinct 
trials  on  different  evidence.  The  court,  in  carrying  out  this 
view,  instructed  the  jury  to  consider  plaintiff's  suit  and  de- 
fendant's cross-demand  separately,  and  that  in  the  suit  upon 
plaintiff's  claim  it  is  admitted,  and  must  be  taken  as  true, 
that  defendant's  arm  was  fractured. 

The  court  refused  an  instruction  asked  by  plaintiff  to  the 
effect  that  as  the  fracture  was  admitted  in  the  pleadings,  it 
must  be  taken  as  true  in  the  trial  of  the  case,  without  the 


FRACTUEES  NEAR  THE   SHOULDER-JOINT.  35 

limitation,  in  the  instruction  given  upon  this  subject,  to  the 
effect  that  it  should  only  extend  to  the  trial  of  plaintiff's 
claim.  The  view  thus  taken  by  the  court  cannot  be  sus- 
tained. The  trial  upon  plaintiff's  claim  and  defendant's 
cross-demand  was  in  fact  but  one  trial. 

The  issues  as  to  these  separate  demands  of  the  parties 
were  distinct  and  different,  but  they  constituted  the  issu.es  of 
one  case,  upon  which  there  could  be  but  one  trial.  It  is  im- 
possible to  concede  that  one  party  could  have  been  held  to 
admit  a  given  fact,  when  it  applied  to  his  adversaries'  claim, 
and  yet  deny  it  when  applied'  to  his  own,  and  this,  too,  in  the 
same  trial  upon  the  same  issues.  Parties  in  their  pleadings 
and  evidence  must  be  held  to  a  proper  consistency,  and  not 
permitted  to  affirm  and  deny  a  fact  in  the  same  case.  We 
know  of  no  rules  of  law  that  will  sanction  the  view  and 
ruling  of  the  court  below.  It  may  further  be  observed,  in 
order  to  show  the  incorrectness  of  the  ruling  of  the  court  be- 
low, that  a  direct  issue  is  formed  upon  the  cross-demand  as 
to  plaintiff's  negligence,  in  reducing  the  fracture,  thus  in- 
volving its  existence,  which  is  not  put  in  issue,  but  admitted 
by  the  defendant.  He  certainlj'-  cannot  be  permitted  to  con- 
tradict his  admissions  by  evidence. 

The  effect  of  the  ruling  in  question  upon  the  case  cannot 
be  understood  without  a  further  statement  of  facts,  which 
will  exhibit  a  curious  result.  It  seems  plaintiff  claimed,  that, 
as  a  physical  fact,  the  fracture  could  not  have  been  reduced 
if  the  shoulder-joint  was  really  dislocated.  He  insisted 
arguendo^  that  the  arm  was  fractured,  a  fact  admitted  by 
the  pleadings,  and  that  the  fracture  was  reduced,  therefore 
there  could  have  been  no  dislocation.  To  meet  this  position, 
defendant  denied  the  existence  of  the  fracture,  and  the  court 
permitted  him  to  introduce  evidence  to  prove  there  was  none, 
thus  contradicting  the  express  admissions  of  his  pleadings. 
Without  determining  that  plaintiff's  argument  was  properly 
based  on  defendant's  admission  in  the  pleadings,  it  is  quite 
clear  that  defendant  ought  not  to  have  been  permitted  to 
answer  it  by  denying  his  own  admissions. 


36  CIVIL  MALPEACTICE. 

The  plaintiff  requested  the  court  to  instruct  the  jury,  that 
to  enable  defendant  to  recover  upon  his  cross-demand,  he  was 
required  to  prove  that  plaintiff  performed  the  service  in  an 
unskilful  and  negligent  manner,  whereby  he  suffered  dam- 
age, and  tliat  no  negligence  of  his  own  tended  to  increase  or 
consummate  the  injury  complained  of. 

This  instruction  was  refused,  and  an  instruction  given  to 
the  effect  that  the  burden  of  proof  rested  on  plaintiff  to 
show  defendant's  negligence,  if  the  same  was  relied  upon  to 
defeat  the  cross-demand.  This  was  clearly  erroneous.  A 
party  claiming  to  recover  for  the  negligent  or  unskilful  acts 
of  another  must  show  him  to  be  in  the  wrong,  and  also 
prove,  if  the  issue  is  made  thereon,  that  no  negligence  of  his 
own  caused  the  injury.  Musch  v.  The  City  of  Davenport^ 
6  Iowa,  443  ;  Sedg.  on  Measure  of  Damages,  2d  edit.  marg. 
p.  468,  and  authorities  cited. 

Other  objections  were  made  to  the  ruling  of  the  court  be- 
low, based  upon  instructions  given  ;  no  exceptions  seemed  to 
have  been  taken,  and  objections  thereto  cannot  be  consid- 
ered. As  the  judgment  of  the  court  below,  for  the  errors 
above  pointed  out,  must  be  reversed,  further  objections  need 
not  be  noticed  though  saved  by  proper  exceptions. 

Reversed. 


Tefft  v.  Wilcox. 1 

Opinion  by  Sapfoed,  J.  Upon  the  trial  of  this  case  in 
the  court  below,  the  plaintiff,  now  defendant,  in  error,  hav- 
ing been  sworn  as  a  witness  in  his  own  behalf,  was  asked, 
among  others,  the  following  question  :  "  What  damage  have 
you  sustained  in  consequence  of  the  loss  of  your  right  arm 
and  shoulder?"  The  answer  of  the  witness  was  in  the 
words  as  follows :  "  My  answer  is,  the  amount  claimed  in  my 
petition,  fully  ten  thousand  dollars."  Both  the  question  and 
the  answer  were  objected  to  by  the  counsel  for  the  defend- 
ant ;  but  the  objections  were  overruled,  and  the  testimony 
1  6  Kansas,  46. 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      37 

was  allowed  to  go  to  the  jury,  and  exceptions  to  the  ruling 
of  the  court  were  taken. 

I.  It  is  contended  for  the  defendant  in  error,  that,  in  or- 
der to  make  the  exceptions  available,  the  party  excepting 
ought  to  have  gone  further  than  he  did,  and  moved  the  court 
to  rule  out  the  objectionable  testimony.  We  do  not  think 
so.  The  objections  to  the  question  propounded,  and  to  the 
answer  of  the  witness,  were  taken  in  the  usual  way,  and  upon 
such  objections  being  overruled,  the  exceptions  to  such  rul- 
ings were  also  entered  according  to  the  usual  practice  in  such 
cases,  and  were  no  doubt  sufficient  to  entitle  the  party  in 
whose  behalf  they  were  so  made  to  any  right  which  he  might 
have  by  reason  of  the  premises.  If,  therefore,  under  the  rul- 
ing of  the  court  in  allowing  the  question  referred  to  to  be 
asked  and  answered  as  stated,  improper  and  illegal  testi- 
mony was  put  before  the  jury,  the  course  of  the  objecting 
party  was  such  as  to  save  the  point  as  a  basis  for  error  to 
this  court.     Sections  300,  301,  302,  Code  of  1868. 

II.  Then,  as  to  the  question  asked,  it  was  in  no  view  of 
the  case  a  proper  one.  It  was  calculated  to  elicit  no  facts 
which  w^ould  assist  the  jury  in  determining  for  themselves  as 
to  the  question  of  damages,  but  left  the  whole  matter  to  the 
mere  opinion  of  the  witness.  It  was  a  question  resting  upon 
and  including  a  large  number  of  facts,  as  is  evident  from  the 
multifarious  proof  which  was  submitted,  and  the  number  of 
w^itnesses  who  were  called  and  testified  at  the  trial ;  and  it 
was  such  facts  themselves  that  the  defendant  was  entitled  to 
have  the  jury  pass  upon,  and  that,  too,  uninfluenced  by  any 
opinion  of  any  witness  testifying  in  the  relation  in  which  this 
witness  appeared.  But  such  right  was  taken  away  by  the 
authority  of  the  court  in  permitting  the  course  of  inquiry 
which  was  pursued  in  this  instance,  and  it  seems  clear  that 
such  a  ruling  ought  not  to  be  sustained.  But  this  matter  is 
placed  beyond  a  doubt  when  the  answer  of  the  witness  comes 
to  be  considered  in  the  light  of  the  authorities.  "  Another 
general  rule  which  pervades  all  our  law  is,  that  the  witness 
is  to  testify  only  to  facts.      He  is  to  speak  as  to  the  facts 


38  CIVIL  MALPRACTICE. 

•  which  he  has  heard  or  seen.  His  opinion  is  not  to  be  given, 
for  it  is  the  opinion  of  the  jury  on  the  testimony  which  forms 
the  verdict  and  decides  the  case."  And  again:  "  The  general 
rule  which  requires  a  witness  to  speak  to  facts  within  his 
knowledge  is  applied  to  the  subject  of  compensation ;  the  dam- 
age must  be  proved  like  any  other  fact  in  the  cause,  and  no 
testimony  amounting  to  a  mere  opinion  is  competent."  Sedg. 
on  Dam.  699,  4th  edit.  TOO ;  29  Barb.  422 ;  17  Wend.  137. 
There  are  exceptions  to  the  rule  as  thus  expressed,  having 
reference  to  questions  of  science,  trade,  and  to  those  of  a  sim- 
ilar nature.  But  the  question  and  answer,  and  the  matter  to 
which  the  inquiry  was  directed  in  this  instance,  do  not  come 
within  any  of  such  exceptions  ;  and  hence  the  general  rule 
must  be  held  to  govern.  Bvit  it  is  claimed  that  the  evidence 
complained  of,  even  if  it  should  be  held  to  have  been  improp- 
erly admitted,  could  not  have  operated  to  the  detriment  of  the 
plaintiff  in  error,  for  the  reason  that  "  it  could  not  have  influ- 
enced the  jury,  because  there  was  no  other  evidence  in  a  lump, 
and  the  jury  found  only  $2,900  as  the  damage."  We  do  not 
see  how  the  conclusion  of  counsel  results  from  or  follows  the 
premises  stated.  The  jury  must  have  given  some  considera- 
tion to  all  of  the  testimony  which  was  offered,  and  more  espe- 
cially to  such  portions  of  it  as  had  a  direct  bearing  upon  the 
question  of  damages  ;  and  it  is  but  reasonable  to  believe  that 
all  of  such  last-mentioned  evidence  must  have  had  more  or 
less  influence  upon  their  minds  in  the  making  up  of  their 
verdict.  Just  how  much,  or  how  strong  was  such  influence, 
as  connected  with  or  resulting  from  any  particular  portion, 
it  is  impossible  to  know.  But  is  it  not  just  as  impossible  for 
us  to  say,  with  any  show  of  reason,  that  the  proof  of  the 
case  of  the  plaintiff  below  did  not,  as  to  the  question  of  dam- 
ages,, rest,  to  a  very  great  extent,  upon  this  identical  state- 
ment of  the  witness  ?  The  jury  must  not  only  have  consid- 
ered all  of  the  testimony  offered  upon  the  point  in  question, 
but  they  were  convinced  by  it  —  as  witness  their  verdict  — 
that  the  plaintiff  below  ought  to  recover  ;  and  is  there  any 
way  by  which  we  may  decide  as  to  what  particular  portion 


FRACTUEES  NEAR  THE  SHOULDER-JOINT.      39 

of  such  evidence  so  operated  upon  the  minds  of  the  jury  as  to 
produce  such  result  ?  If  there  is,  we  are  not  aware  of  it. 
Our  conclusions  then,  as  to  the  evidence  in  question,  are,  that 
it  was  clearly  incompetent,  and  therefore  inadmissible  ;  that 
it  might  have  influenced  the  jury  to  render  a  verdict  for  a 
larger  amount  against  the  defendant  below  than  they  would 
have  rendered  had  legal  and  proper  testimony  only  been 
given.  Here,  therefore,  is  good  ground  for  error.  9  Conn. 
129 ;  29  Barb.  422. 

III.  "It  is  not  proposed  to  refer  in  detail  to  the  further 
evidence  on  the  question  of  damages  in  this  record,  or  to  the 
questions  raised  in  respect  thereof  upon  the  argument,  with 
the  purpose  of  giving  the  opinion  of  the  court  as  to  whether 
they  are  or  are  not  well  taken.  But  in  view  of  the  fact 
that  further  proceedings  may  be  had  herein,  it  may  be  im- 
portant to  call  attention  to  the  rule  as  to  the  measure  of 
damages  which  has  obtained  in,  and  has  been  followed  by 
many  highly  respectable  courts  in  the  trials  of  actions  of  a 
similar  nature,  and  hence  may  be  considered  as  settled.  It 
is  to  the  effect,  that,  notwithstanding  the  absence  of  smj 
malice  or  fraud  'on  the  part  of  an  attending  physician  and 
surgeon,  yet,  if  injury  result  to  his  patient  by  reason  of  a 
want  of  ordinary  skill  or  ordinary  care  and  attention  in  the 
treatment  of  such  patient,  the  injured  party  may  recover 
damages  for  the  injury,  and  such  as  are  compensatory  in 
their  nature.  These  are  held  to  include  pecuniary  loss,  both 
direct  and  indirect,  if  referable  to  and  resulting  from  the 
course  of  treatment  complained  of.  Suffering  also,  which  is 
produced  in  consequence  of  the  acts  in  question,  may  be  a 
subject  of  compensation.  So  also  the  loss  of  time  and  actual 
expenses  incurred  in  consequence  of  the  fault,  want  of  skill, 
or  negligence  of  the  physician.  Regard  is  also  to  be  had  in 
such  cases  to  the  character  of  the  resulting  injut-y,  as  to 
whether  it  be  temporary  or  permanent  in  its  consequences. ^ 
So  also  the  situation  and  condition  of  the  injured  party  may 
be  considerable.     All  of  these  items  may  be  taken  into  the 

1  Wenger  v.  Colder. 


40  CIVIL  MALPRACTICE. 

account  by  the  jury  in  the  making  up  of  their  estimate  of 
damages  in  a  proper  case  ;  and  as  a  matter  of  course  it  fol- 
lows that  evidence  properly  referable  thereto,  and  tending 
to  establish  such  damages  as  resulting  under  each  particular 
head  or  description,  would  be  competent,  though  such  evi- 
dence must  be  free  from  objection  in  other  respects." 

This  doctrine  is  supported  upon  the  general  principle  that 
when  an  injury  has  been  sustained,  and  the  law  gives  a 
remedy,  that  remedy  shall  be  commensurate  to  the  injury 
sustained.  See  also  as  to  the  points  named,  Sedgwick  on 
the  Measure  of  Dam.  32  ;  10  Barb.  621 ;  1  Kernan,  416  ; 
22  Mo.  344  ;  15  N.  Y.  415  ;  1  Duer,  233. 

IV.  It  appears  from  the  record  that  during  the  progress 
of  the  trial  several  physicians  and  surgeons  were  examined 
on  behalf  of  the  plaintiff,  who  gave  testimony  as  experts, 
and  without  knowing  the  particulars  of  the  case  from  per- 
sonal observation.  Without  specifying  particular  instances, 
of  which  there  are  several,  the  court  permitted  such  experts 
to  give  their  opinions  as  to  matters  of  fact  concerning,  and 
assumed  to  exist  in,  and  constituting  this  particular  case. 
This  is  not  allowable,  as  we  understand  the  rule  applicable 
to  such  examinations,  when  the  facts  are  disputed,  as  was 
the  case  here.  "  In  such  a  case  the  expert  cannot  give  an 
opinion  on  the  case  under  trial ;  but  counsel  must  put  to 
him  an  hypothetical  or  supposed  state  of  facts,  and  ask  the 
opinion  of  the  witness  upon  these  facts."  Elwell  on  Mal- 
practice, 277,  and  the  cases  there  cited.  This  rule  ought  to 
have  been  followed  in  this  case  ;  and  the  court  failing  to  en- 
force it,  and  the  defendant  having  properly  saved  his  objec- 
tions in  respect  thereof,  he  is  in  a  condition  to  take  advan- 
tage of  the  error  whenever  it  occurred.  And  that  such  error 
is  substantial,  and  calculated  to  prejudice  the  rights  of  the 
party  to  be  affected  thereby,  is  not  doubted  ;  it  cannot  there- 
fore be  disregarded. 

V.  It  is  claimed  that  in  the  examination  of  witnesses  in 
this  case,  questions  were  propounded  which  were  of  and  con- 
cerning matters  involving  points  of  law  only.    It  hardly  need 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      41 

be  said  that  this  course  of  inquiry  was  improper,  if  it  oc- 
curred as  stated.  This  does  not,  however,  appear  to  be  the 
case  in  regard  to  the  portions  of  the  testimony  to  which  our 
attention  is  directed  under  this  point,  and  whicli  had  refer- 
ence to  what  would  be  the  duty  of  an  attending  physician 
and  surgeon  under  like  circumstances  as  were  supposed  to 
exist  in  this  case. 

VI.  As  to  what  constitutes  ordinary  skill,  and  ordinary 
care  and  diligence  on  the  part  of  a  physician  and  surgeon  — 
it  is  a  question  of  law,  in  this  view  at  least,  that  it  is  to  be 
stated  b}'  the  court  as  defined  by  the  books.  It  will  be  seen, 
however,  at  a  ghmce,  that  in  order  to  enable  a  jury  to  apply 
the  rule  so  stated  to  particular  circumstances,  something  fur- 
ther is  necessary  to  be  done.  Such  jury  must  be  informed  as 
to  the  facts  or  criterion  upon  and  by  which  the  standard  of 
ordinary  skill  and  ordinary  care  and  diligence  rests  and  is 
regulated  in  these  professions.  And  to  supply  such  need,  evi- 
dence may  properly  be  introduced  as  showing  such  facts. 
This  evidence  must,  from  the  very  nature  of  the  case,  come 
from  experts,  as  other  witnesses  are  not  competent  to  give  it ; 
nor  are  juries  supposed  to  be  conversant  with  what  is  peculiar 
to  the  science  and  practice  of  the  professions  of  medicine  and 
surgery,  to  that  degree  which  will  enable  them  to  dispense 
with  all  explanations.  >  Such  explanations,  therefore,  become 
necessary.  In  this  view,  the  whole  question  under  considera- 
tion seems  to  be  one  of  mixed  law  and  fact,  and  is  so  to  be 
regarded.  The  questions  to  which  reference  is  made,  so  far 
as  they  are  directed  to  the  end  suggested,  were  proper. 

VII.  The  testimony  in  this  case  was  very  voluminous,  and 
numerous  objections  were  interposed  to  the  introduction  of 
specified  portions  of  it  (other  than  those  to  which  we  called 
attention),  on  the  ground  of  incompetency,  irrelevanc}^  and 
immateriality.  We  have  very  carefully  considered  each  of 
the  points  made,  and  have  reached  the  conclusion  that  some 
of  them  are  well  taken,  and  should  be  sustained.  It  does 
not  seem  essential,  however,  to  take  up  and  examine  and 
pass  the  questions  thereby  presented,  and  for  several  reasons : 


42  CIVIL   MALPEACTICE. 

1st.  In  view  of  the  conclusion  reached,  in  regard  to  the  point 
ah'eady  considered  in  this  opinion,  the  case  must  go  back  for 
a  new  trial.  2d.  Upon  such  trial  we  cannot  believe  that 
those  errors  which  we  think  were  committed  on  the  former 
trial,  and  to  which  reference  is  not  made,  will  be  at  all  likely 
again  to  occur  ;  and,  3d.  In  such  last  view  of  the  matter  no 
practical  good  would  result  from  our  investigation,  which 
would  be  commensurate  with  the  task  of  going  over  the 
entire  ground  suggested  upon  the  face  of  the  record.  And 
besides  this,  such  investigation  would,  for  the  most  part,  be 
an  examination  into,  and  an  assertion  of  well-established 
and  declared  principles  of  law,  respecting  the  examination  of 
witnesses  and  the  introduction  of  testimony.  It  is  also  to  be 
remarked  in  this  connection,  that  while  some  of  the  questions 
which  were  objected  to  by  counsel  were  no  doubt  improper, 
they  were  of  such  a  character  as  to  result  in  no  particular 
injury  to  any  one,  and  the  mere  fact  of  their  being  allowed 
would  not  therefore  be  a  sufficient  ground  for  a  reversal. 

VIII.  But  objections  are  also  urged  to  the  instructions 
which  were  given  to  the  jury.  We  do  not  propose  to  discuss 
these  instructions  at  length,  or  even  notice  all  of  them ;  but 
shall  content  ourselves  with  calluig  attention  to  some  which 
are  especially  objected  to,  and  as  to  these,  with  a  single  ex- 
ception, more  by  way  of  general  remark  than  by  direct  or 
particular  examination.  It  is  claimed  that  the  fifth  instruc- 
tion which  was  asked  and  given  in  behalf  of  the  plaintiff 
below  does  not  give  the  correct  rule  by  which  to  determine 
the  responsibility  of  the  defendant  in  this  case  ;  and  for  the 
reason,  that  the  standard  of  legal  obligation  imposed  thereby 
would  require  of  him  extraordinary  care  and  skill,  an  ex- 
traordinary amount  of  learning  in  his  profession,  and  an  ex- 
traordinary judgment.  The  objection  is  to  a  certain  extent 
sustainable.  The  instruction  was  liable  to  be  made  the 
means  of  conveying  to  the  minds  of  the  jury  an  idea  of  the 
undertaking  on  the  part  of  the  surgeon,  when  he  assumes 
the  charge  of  a  case,  which  the  law  does  not  justify.  It  was 
therefore  calculated  to  injure  the  defendant,  as  requiring  too 


FEACTURES  NEAR  THE  SHOULDER-JOINT.      43 

much  at  his  hands.  As  we  understand  the  current  of  the 
decisions  as  to  the  undertaking  and  responsibility  of  a  prac- 
tising physician  and  surgeon,  it  is  to  the  effect,  substantially, 
and  may  be  stated  as  follows  :  He  is  never  considered  as 
warranting  a  cure,  unless  under  a  special  contract  for  that 
purpose  ;  but  his  contract,  as  implied  in  law,  is,  that  he  pos- 
sesses that  reasonable  degree  of  learning,  skill,  and  expe- 
rience which  is  ordinarily  possessed  by  others  of  his  profes- 
sion ;  that  he  will  use  reasonable  and  ordinary  care  and 
diligence  in  the  treatment  of  the  case  which  he  undertakes  ; 
and  that  he  will  use  his  best  judgment  in  all  cases  of  doubt 
as  to  the  proper  course  of  treatment.  He  is  not  responsible 
in  damages  for  want  of  success,  unless  it  is  shown  to  result 
from  a  want  of  ordinary  skill  and  learning,  and  such  as  is 
ordinarily  possessed  by  others  of  his  profession,  or  from  want 
of  ordinary  care  and  attention.  He  is  not  presumed  to  en- 
gage for  extraordinary  skill,  or  for  extraordinary  diligence 
and  care ;  nor  can  he  be  made  responsible  in  damages  for 
errors  in  judgment,  or  mere  mistakes  in  matters  of  doubt  or 
uncertainty.  See  7  Foster,  460 ;  28  Maine,  97 ;  39  Maine, 
155. 

A  careful  consideration  of  the  foregoing  observations  will 
show  that  the  degree  of  learning  and  skill  which  the  physi- 
cian and  surgeon  holds  himself  out  to  possess  is  that  degree 
which  is  ordinarily  possessed  by  the  profession,  as  it  exists  at 
the  time,  or  contemporaneous  with  himself,  and  not  as  it  may 
have  existed  at  some  time  in  the  past.  It  follows,  then,  that 
the  standard  of  such  ordinary  skill  may  now  be  in  the  ad- 
vance of  what  it  has  been  in  the  past,  and  according  to  the 
general  and  material  progress  made  in  the  sciences  of  medi- 
cine and  surgery,  "  the  standard  of  ordinary  skill  which  is 
required  of  any  physician  and  surgeon,  it  will  be  borne  in 
mind,  is  that  degree  and  amount  of  knowledge  and  science 
which  the  leading  authorities  have  pronounced  as  the  result 
of  their  researches  and  experience  up  to  the  time,  or  within 
a  reasonable  time  before  the  issue  or  question  to  be  deter- 
mined is  made."    Elwell  on  Malpractice,  53.    And  such  phy- 


44  CIVIL  MALPRACTICE. 

sician  and  surgeon  must  in  general  be  held  to  apply  in 
his  practice  what  is  thus  settled  in  his  profession.  lb.  31. 
There  is  nothing  unreasonable  in  such  requirement,  and  it  is 
no  more  than  that  which  is  expected  of  the  other  professions. 
That  which  is  pronounced  as  settled  in  any  profession  by  the 
leading  and  standard  authorities  therein  is  within  the  reach 
of  any  practitioner  ;  and  his  being  such  practitioner,  in  gen- 
eral, presupposes  the  fact,  and  is  guaranty  on  his  part  that 
he  is  in  possession  of  a  knowledge  of  it  as  so  settled.  The 
ideas  here  adyanced  are  not  to  be  extended  so  as  to  embrace 
what  may  be  known  only  to,  and  practised  by,  the  highest 
talent ;  but  should  be  confined  to  that  which  is  within  the 
reach  of,  and  may  and  should  be  attained  by,  the  more  com- 
mon and  ordinary  class  of  practitioners. 

Regard  also  is  to  be  had  to  the  circumstances  by  which  the 
different  portions  of  any  one  profession  may  be  surrounded,  as 
affecting  the  question  of  their  proficiency  in,  and  knowledge 
of,  advances  which  may  be  made  in  their  particular  line,  and 
the  obligation  to  be  up  to  such  advance.  The  opportunities 
by  reason  of  locality,  or  other  circumstance,  of  one  portion, 
may  be  many  times  more  favorable  than  those  of  another  ; 
and  the  responsibilities  resting  upon  them  would  be  corre- 
spondingly greater.  This  idea  is  illustrated  by  Elwell  in  his 
work  on  Malpractice,  pp.  22,  23,  where  he  makes  the  follow- 
ing observation  :  "  There  are  many  neighborhoods,  in  the 
West  especially,  where  medical  aid  is  of  difficult  attainment. 
Yet  cases  of  disease  and  surgery  are  constantly  occurring, 
and  they  must  of  necessity  fall  into  the  hands  of  those  who 
have  given  to  the  subject  but  little  if  any  thought.  Thus, 
the  inexperienced  and  the  unlearned  attend  to  the  surgery  in 

their   way,  or  it  is  not   attended   to  at  all In  such 

cases  no  more  can  be  expected  of  the  operator  than  the  ex- 
ercise of  his  best  skill  and  judgment.  In  lai'ge  towns  and 
cities  are  always  found  surgeons  and  physicians  of  the  great- 
est degree  of  skill  and  knowledge.     They  are  to  be  held  to  a 

corresponding  high   degree  of  responsibility In    the 

smaller   towns    and   country,  those  who  practise   medicine 


FRACTURES  NEAR  THE  SHOULDER-JOINT.      45 

and  surger3s  though  often  possessing  a  thorough  theoretical 
knowledge  of  the  highest  elements  of  the  profession,  do  not 
enjoy  so  great  opportunities  of  daily  observation  and  prac- 
tical operations,  where  the  elementary  studies  are  brought 
into  every-day  use,  as  those  have  who  reside  in  the  metro- 
politan towns;  and  though  just  as  well  informed  in  the  ele- 
ments and  literature  of  their  profession,  they  should  not  be 
expected  to  exercise  that  high  degree  of  skill  and  practical 
knowledge  possessed  by  those  having  greater  facilities  for 
performing  and  witnessing  operations,  and  who  are,  or  may 
be,  constantly  observing  the  various  accidents  and  forms  of 
disease.  It  will  not,  therefore,  as  a  general  thing,  require  so 
high  a  degree  of  knowledge  to  bring  this  class  of  physicians 
up  to  the  rule  of  ordinary  knowledge  and  skill,  as  in  places 
where  greater  facilities  are  afforded  by  which  higher  profes- 
sional knowledge  is  attainable."  We  have  remarked  above 
as  to  the  obligation  of  the  physician  and  surgeon  to  apply 
correctly  in  his  practice  what  is  settled  in  his  profession. 
But  it  is  to  be  remembered  that  such  application  is  not  alone 
adequate  to  the  management  of  the  different  cases,  and  the 
phases  thereof,  which  the  practitioner  may  be  called  upon  to 
meet.  His  best  judgment  is  constantly  appealed  to,  and 
upon  such  judgment  he  must  rely.  It  is  plain  to  the  most 
casual  observer  that  there  is  great  room  for  difference  of 
opinion  in  the  exercise  of  the  arts  of  medicine  and  surgery  ; 
and  as  a  result,  there  are  usually  more  ways  than  one  of  ac- 
complishing the  same  thing,  and  each  having  its  advocates 
as  being  equally  efficient,  or  even  better  than  any  other. 
"  Good  judgments  may  differ  ;  "  and  such  being  the  case,  as 
just  remarked,  the  practitioner  must  use  his  judgment,  and 
follow  its  dictates  in  all  cases  of  doubt,  or  where  there  may 
be  a  foundation  for  such  differences  of  opinion ;  and  if  he 
.thus  exercises  such  judgment  in  an  enlightened  and  reason- 
able manner,  he  will  not  be  responsible  for  errors.  Elwell 
on  Malpractice,  29.  But  it  is  unnecessary  to  prolong  this 
opinion  by  further  discussion  of  the  points  suggested  by  the 
record,  or  by  the  argument  of  counsel.     The  case  must  be 


46  CIVIL  MALPEACTICE. 

remanded  for  a  new  trial  upon  the  grounds  first  adverted  to 
herein  ;  and  enough  has  been  said  as  to  the  law  governing 
cases  of  this  sort  to  indicate  the  opinion  of  this  court  upon 
the  more  important  questions  which  are  raised  upon  the  in- 
structions, and  which  may  be  presented  on  a  reexamination 
of  the  case.  The  judgment  is  rever'sed. 

All  the  justices  concurring. 


FRACTURES  NEAR  THE  ELBOW-JOINT,  47 


CHAPTER  III. 

fractures  near  the  elbow-joint. 
Steele  v.  Newton". 

(Superior  Court,  Cincinnati,  Nov.  Term,  1856.) 
This  was  an  action  to  recover  damages  for  alleged  im- 
proper treatment  of  a  fracture  of  the  lower  end  of  the  hu- 
merus. Damages  laid  at  -$3,000.  The  defendant  was  an 
"  Eclectic "  practitioner  of  Cincinnati,  and  the  editor  of  a 
work  entitled  "  Symes'  Principles  and  Practice  of  Surgery," 
from  which  this  case  is  quoted. 

"  When  stripped  for  examination  (about  the  time  of  the 
trial),  it  was  found  that  motion  of  the  elbow- joint  was  per- 
fect. There  waS  a  visible  decrease  in  the  muscles  of  the 
fore-arm  and  partial  contraction  of  the  fingers.  He  stated 
that  he  sometimes  scratched  his  hand  so  as  to  make  it  bleed 
wdthout  being  aware  of  the  injury.  The  contraction  of  the 
fingers  was  not  more  than  is  customary  with  those  who  walk 
with  their  hands  swinging  by  the  side." 

ABSTRACT   OF   EVIDENCE. 

Prof.  B.  D.  Mussey  testified,  "  that  he  found  the  arm 
withered,  and  the  general  sensibility  much  impaired  —  re- 
sults arising  from  diminished  innervation.  He  inferred  that 
the  blood-vessels  had  been  too  much  constricted  by  the  ban- 
dages, thus  obstructing  the  proper  circulation  of  the  blood 
in  the  limb.  These  results  might  have  been  induced  by 
injury  to  the  median  nerve,  but  thinks  the  circulation  was 
obstructed,  and  in  consequence  the  blisters  appeared.  Fract- 
ures in  the  lower  end  of  the  humerus  are  very  difiicult  to 


48  CIVIL  MALPRACTICE. 

treat,  and  for  which  there  is  a  variety  of  plans.  He  should 
have  kejDt  the  fore-arm  flexed  on  the  upper-arm,  at  a  right 
angle,  and  have  been  careful  not  to  dress  it  too  tightly.  He 
should  use  some  sort  of  a  splint,  though  he  could  not  at 
present  specify  the  exact  kind.  He  was  of  opinion  that,  if  a 
fracture  had  existed  in  the  case,  it  was  probably  an  oblique 
fracture  including  the  internal  condyle.  The  elbow-joint  is 
now  in  good  condition,  having  its  natural  motion  in  all  direc- 
tions. He  has  not,  however,  seen  similar  results  from  such  a 
fracture.  The  ulnar  nerve,  as  well  as  the  median,  may  have 
been  injured." 

Cross-examined.  "  He  was  not  positive  as  to  the  direction 
of  the  fracture,  nor  was  it  always  easy  to  judge  so  far  as  to 
form  a  positive  opinion.  All  fractures  of  the  os  humeri,  run- 
ning into  the  elbow-joint,  are  difficult  of  cure.  He  was  of 
opinion  that  a  permanent  injury,  or  a  degree  of  deformity,  is 
sustained  in  a  majority  of  cases.  The  vesications  in  this 
case  may  be  accounted  for  by  the  injury  done  to  the  nerves, 
but  thinks  that  tight  bandages  are  often  er  the  cause  of  such 
results.  He  has  seen  cases  similar  to  this,  —  has  seen  a  case, 
some  years  ago,  where  the  fore-arm  mortified  in  consequence 
of  having  been  too  tightly  bandaged.  Thinks  that  in  this 
case  the  dressing  may  have  been  too  tight.  He  was  of  the 
opinion  that  partial  paralysis  might  be  induced  by  too  tight 
dressing,  without  gangrene  necessarily  ensuing.  Erysipelas 
may  follow  such  injuries,  exhibiting  itself  in  from  twenty- 
four  to  seventy-two  hours." 

Prof.  Jesse  Judkins  testified,  that  "  wasting  or  withering 
may  be  a  result  of  muscular  changes  or  of  nervous  sympathy. 
If  there  had  been  a  fracture  of  the  arm,  the  reparation  had 
been  most  complete.  Was  of  the  opinion  that  the  inflam- 
mation had  been  very  intense.  The  capillary  circulation  may 
have  been  arrested  by  too  tight  bandages,  the  result  of  which 
would  have  been  inflammation,  erysipelas,  and  gangrene. 
Injuries  of  the  elbow-joint  are  always  attended  with  compli- 
cations, the  nature  of  which  cannot  be  always  easily  deter- 
mined.     The  erysipelas  complained  of  was,   in  all  proba- 


FRACTURES   NEAR   THE   ELBOW-JOINT.  49 

bility,  induced  by  too  tight  bandages.  The  sui-geon  should 
see  such  a  patient  at  intervals  ranging  from  two  days  to  one 
week." 

Cross-examined.  "  Does  not  think  that  the  injury  of  the 
median  nerve  alone  caused  the  difficulty  here  presented. 
Thinks  the  bandages  might  have  caused  the  erysipelas. 
Bandages  cannot  be  put  on  tight  enough  to  paralj^ze,  with- 
out producing  gangrene.  He  thought  that  a  majority  of 
fractures  of  the  elbow-joint  were  completely  cured.  When 
elbow-joint  fractures  are  complicated,  the  majority  were  not 
cured  completely." 

Prof.  T.  Wood  testified,  that  "he  thinks  present  condition 
of  the  arm  is  the  result  of  bandages  too  tightly  applied. 
Could  not  discover  evidence  of  there  ever  having  been  a 
fracture.  Never  met  with  such  a  result  as  this,  except  it 
had  arisen  from  bandages  too  tightly  applied.  The  median 
nerve  did  not  supply  all  the  fingers.  He  thought  that  the 
purple  color  of  the  hand,  as  testified  to  by  plaintiff,  arose 
from  compression,  —  the  blistering  being  one  of  the  first  re- 
sults of  such  compression.  Paralysis  may  be  induced  with- 
out gangrene.  N,o  injuries  of  the  elbow-joint  are  so  com- 
pletely cured  as  to  leave  no  trace  of  them.  Had  known 
wasting  of  the  arm  to  occur  where  the  bone  had  sustained 
no  injury." 

Prof.  Cr.  C.  Blackman  testified,  that  "  he  had  examined 
the  boy's  arm  and  had  heard  his  statement,  but  from  those 
sources  had  formed  no  positive  opinion.  The  paralysis  may 
be  the  result  of  the  shock  sustained  at  the  time  of  the  acci- 
dent, or  it  may  be  the  result  of  too  tight  bandaging,  or  from 
having  retained  the  arm  too  long  in  one  position.  The  blis- 
ters common  to  such  fractures  may  follow  in  less  than  twen- 
ty-four hours  where  there  is  no  dressing,  and  may  be  the 
result  of  the  violence  done  to  the  soft  parts  at  the  time  of 
injury.  If  erysipelas  was,  at  the  time,  epidemic,  it  would 
almost  certainly  follow  as  one  of  the  phases  of  such  a  case  as 
the  one  under  consideration,  or  even  a  less  injury.  He  had 
no  positive  proof  that  the  arm  had  been  fractured,  but  he 
4 


50  CIVIL  MALPRACTICE. 

thought  there  had  been  a  fracture  of  the  humerus,  involving 
the  inner  condyle  and  injuring  the  ulnar  nerve.  These  are 
bad  fractures,  and  their  true  nature  is  difficult  to  detect.  He 
thought  that  the  ends  of  the  bones  should  have  been  put 
together  immediately,  inflammation  or  not.  The  bandages 
in  such  oblique  fractures  must  be  tied  rather  tightly,  and  the 
surgeon  may  use  either  the  wooden  or  pasteboard  splints. 
Had  known  mortification  occur  in  twenty-four  hours  from 
tight  bandages." 

Cross-examined.  "  Could  not  say  that  the  bandages  in 
this  boy's  case  had  been  too  tight.  In  such  fractures  it  is 
very  common  to  have  impaired  motion.  The  experience  of 
the  oldest  and  ablest  surgeons  in  both  Europe  and  America 
show  this  to  be  the  case.  Prof.  Hamilton  sliows  that  a 
majority  of  such  cases  are  attended  with  permanent  injury  of 
some  sort,  and  all  authors  on  the  subject  testify  that  an  im- 
paired condition  results  in  a  large  majority  if  not  in  all  cases. 
Conditions  might  arise  which  would  cause  him  to  remove  the 
bandages  entirely,  as  severe  pain,  inflammation,  &c.  He  con- 
sidered the  repair  in  this  case  very  perfect,  and  he  had  seen 
greater  paralysis  arise  from  less  injuries." 

Prof.  R.  S.  Neivton.,  the  defendant  in  the  case,  testified, 
that  "  he  was  a  professor  in  the  Eclectic  Medical  Institute, 
and  Surgeon  to  Newton's  Clinic  Institute.  On  the  day  set 
forth  in  the  declaration  saw  the  boy,  Steele,  with  his  arm 
broken.  Humerus  broken  off  obliquely,  the  end  of  the  bone 
driven  down  into  the  hollow  of  the  arm.  Boy  suffering  very 
much.  Could  distinctly  feel  the  end  of  the  bone.  Had  ex- 
perienced but  little  difficulty  in  setting  it,  but  it  was  not  so 
easy  to  keep  it  in  proper  position,  there  being  a  constant 
tendency  to  slip  down  ;  hence,  to  prevent  this,  the  bandage 
had  to  be  applied  firmly.  The  arm  was  much  swollen  at  the 
joint,  and  all  the  blood-vessels  of  the  arm  seemed  to  be  en- 
gorged, though  not  more  than  an  hour  had  elapsed  since  the 
accident.  He  first  drew  the  points  of  the  bones  together,  and 
then  bandaged  the  arm  froui  the  hand  up,  afterward  apply- 
ing the  splints,  leaving  the  arm  flexed  at   right  angles.     In 


FRACTURES  NEAR   THE   ELBOW-JOINT.  51 

this  case  more  pressure  was  needed  than  in  simple  transverse 
fracture,  on  account  of  its  obliquity.  Visited  boy  next 
morning  with  Dr.  Freeman.  Boy  complained  of  arm  hurt- 
ing him  ;  on  removal  of  dressing  found  arm  blistered,  part 
of  the  arm  and  hand  was  of  a  darkish  red,  but  there  were  no 
indications  of  gangrene.  He  said  to  Mrs.  Steele  that  it  was 
a  bad  fracture,  and  that  he  would  hold  the  arm  till  she  could 
get  her  family  physician  or  another  surgeon,  unless  she 
would  assume  the  responsibility  of  the  case.  She  told  him 
to  go  on  and  do  the  best  he  could.  He  had  explained  to  her 
the  dangers  of  such  a  fracture.  After  puncturing  several  of 
the  blisters,  he  reapplied  the  bandages  and  then  put  on  two 
splints,  —  one  on  the  inside  and  one  on  the  outside  of  the 
arm.  The  bandage  extended  from  the  ends  of  the  fingers 
above  the  fracture,  the  hand  being  bandaged  straight.  One 
of  the  splints  was  removed  in  a  few  days.  When  the  long 
wooden  joint  splint  was  off  the  inside,  he  had  an  elastic 
splint  on  in  its  place,  and  a  long  wooden  one  on  the  outside. 
He  treated  the  blisters  with  water  dressings,  and  continued 
the  splints  four  weeks  or  longer.  The  arm  became  offensive 
about  one  week  after  the  accident.  Had  the  boy  under  his 
care  about  seven  months.  Had  treated  the  case  as  a  charity 
patient,  never  having  made  a  charge  against  Mrs.  Steele  on 
his  books." 

Prof.  A.  H.  Baker  testified,  that  "  the  erysipelas  spoken 
of  was  a  result  of  inflammation,  and  this  had  been  in- 
duced by  the  injury  done  to  the  soft  tissues.  The  indica- 
tions of  a  fracture  in  such  a  young  patient  may  be  so  com- 
pletely removed  in  eighteen  months  or  two  years  that  no 
mortal  man  can  detect  it.  The  first  bandage  he  considered 
most  important.  The  practice  of  Dr.  Newton  in  this  case 
was  proper,  and  such  as  would  have  been  followed  by  any 
judicious  surgeon." 

Prof.  Z.  Freeman  testified,  that  "he  saw  patient  next 
morning  after  the  accident.  Tlie  hand  and  arm  were  pur- 
ple. There  were  blisters  on  the  hand  and  arm.  The  ban- 
dage was  not  too  tight.     It  was  an  oblique  fracture  above 


52  CIVIL   MALPRACTICE. 

condyles.  The  boy's  mother  declined  calling  in  any  other 
physician,  and  both  she  and  the  boy  requested  Dr.  Newton 
to  go  on  and  treat  the  case.  The  blisters  in  this  case  were, 
in  his  opinion,  the  result  of  the  attending  erysipelas." 

The  Hon.  O.  M.  Spencer,  in  his  charge  to  the  jury,  said: 
"  It  is  due  to  the  professional  man,  who  has  treated  a  case 
in  other  respects  fairly  and  attentively,  that  a  candid  and 
favorable  consideration  should  be  given  to  the  judgment 
which  he  may  form  of  his  duty  during  the  progress  of  that 
case  ;  otherwise  no  physician  or  surgeon  would  dare  to  un- 
dertake, or  be  safe  in  the  performance  of  his  undertaking. 
In  a  case  otherwise  doubtful,  this  consideration  alone  should 
preponderate  in  his  favor. 

"  Upon  the  whole,  gentlemen,  we  declare  that  to  entitle 
the  plaintiff  to  a  verdict,  you  must  be  satisfied  from  this  evi- 
dence that  the  injury  of  which  he  complains  was  not  the 
natural  result  of  the  original  accident,  but  was  distinctly 
traceable  to  the  mode  of  treatment  pursued  by  the  defend- 
ant ;  in  the  adoption  and  continuance  of  which  he  did  not 
apply  that  skill  and  care  Avhich  men  of  ordinary  intelligence 
and  prudence,  as  physicians  and  surgeons,  would  have  applied. 
Should  this  be  your  conviction,  the  plaintiff  must  recover 
such  damages  as  will  compensate  him  for  the  injury  sustained, 
not  exceeding  the  amount  claimed.  Should  it  be  otherwise, 
or  should  you  not  be  able  to  trace  the  cause  of  this  injury, 
or  your  minds  be  unable  to  decide  from  the  evidence  whether 
the  defendant  has  been  in  fault,  according  to  the  rule  stated, 
your  verdict  should  be  for  the  defendant." 

Verdict  for  defendant. 


Russell  v.  Wardner. 

(Alexander  County  (HI.),  C.  C.  April  Term,  1871.) 

Declaration.  Plea  of  trespass  on  the  case.  Defendant 
was  employed  as  surgeon,  &c.,  to  treat  certain  hurts  of 
plaintiff's  arm.     The  defendant  entered  upon  the  treatment, 


FRACTURES   NEAR   THE  ELBOW-JOINT.  63 

and  afterward  so  carelessly,  negligently,  improperly,  and  un- 
skilfully conducted  himself,  that  the  arm  of  plaintiff  was 
rendered  crooked,  and  so  out  of  shape,  and  still  remains  so ; 
that  the  same  is  weak  and  wholly  useless,  whereby  he  has 
lost  and  been  deprived  of  great  gains,  wherefore  he  brings 
suit. 

In  the  second  count  the  plaintiff  avers,  in  addition,  that 
the  arm  was  rendered  painful,  deformed,  and  of  little  use,  to 
the  damage  of  the  plaintiff  |10,000. 

Trial  before  a  jury.     Baker,  J. 

ABSTRACT   OP   EVIDENCE.  —  FOR   PLAINTIFP. 

Plaintiff  testified,  that  "  he  broke  his  arm.  Defendant 
came  in  fifteen  or  twenty  minutes,  and  said  it  was  broke  and 
dislocated  too.  Dressed  arm  on  two  splints,  pretty  tight, 
brought  arm  around  so  that  hand  came  against  stomach. 
Told  him  it  did  not  look  straight.  He  said  it  would  come 
all  right.  Then  placed  it  in  a  sling.  Next  morning  I  went 
to  his  office.  He  took  off  first  splints  and  put  on  a  pistol 
splint.  In  eighteen  days  he  took  off  bandage  and  said  it  was 
knit.  It  then  appeared  to  me  as  crooked  as  it  is  now.  The 
arm  is  not  strong.  Light  work  will  so  tire  it  as  to  pain  me 
at  Jiight,  and  keep  me  awake." 

Cross-examined.  "  The  doctor  picked  up  my  arm,  said 
it  was  broke  near  the  wrist  ;■  said  he  did  not  know  but  the 
end  of  humerus  was  broken  off  ;  he  was  afraid  it  was  ;  said 
head  of  radius  was  dislocated  ;  said  there  was  a  fracture  of 
radius  ;  was  a  bad  fracture,  thought  it  would  come  all  right ; 
did  not  say  anything  about  its  being  stiff.  Did  not  say  any- 
thing about  dislocation  of  the  ulna.  It  stood  out  as  it  does 
now.  After  it  was  dressed  and  the  bones  adjusted  it  felt 
more  comfortable  than  before.  Splints  projected  over  the 
arm  perhaps  one  fourth  of  an  inch  on  each  side.  The  inside 
splint  extended  to  elbow ;  the  outside  one  a  little  above  el- 
bow and  on  the  hand  to  near  end  of  fingers.  Another  ban- 
dage was  put  on  outside  of  splints.  Next  morning  put  on 
pistol  splint.     Told  me  to  keep  thumb  upward,  arm  level 


54  CIVIL  MALPEACTICE. 

from  hand  to  elbow.  After  several  days  there  were  little 
blisters  below  the  elbow  ;  nothing  of  the  kind  next  morning. 
I  do  not  remember  going  to  his  office  eight  or  nine  days  after 
accident  with  splints  in  my  hand.  I  did  not  take  them  off 
till  they  were  finally  taken  off  by  him.  I  did  not  take  off 
splints  at  night." 

Dr.  James  Roberts  testified,  that  "  there  was  a  deformity 
of  radius,  shortening  half  an  inch,  obtuse  angle  resting  very 
near  the  ulna  ;  deformity  of  external  condyle  ;  inability  to 
straighten  fore-arm  ;  cavity  at  the  head  of  ulna  in  olecranon 
fossa ;  slight  dislocation  of  head  of  radius  ;  elongation  of 
ligaments  that  fasten  lower  end  of  ulna  to  wrist  and  radius  ; 
fracture  oblique  ;  falling  down  of  parts  on  the  ulna  gives  the 
arm  a  crooked  appearance.  Dislocated  head  of  radius  could 
have  been  reduced.  Good  surgery  would  have  required  the 
reduction  and  fractured  parts  to  have  been  put  in  exact 
apposition.  Nothing  less  would  have  been  good  surgery. 
They  are  now  partly  together,  not  as  they  should  be.  Dis- 
location of  head  of  radius  would  have  been  discovered  easily 
if  no  swelling.  Have  known  it  to  swell  in  half  an  hour, 
half  the  size  of  the  limb.  If  there  was  dislocation  of  head 
of  radius,  I  would  discover  it  without  much  looking  ;  cannot 
tell  whether  there  was*  a  reduction  of  the  dislocation  ;  it  is  a 
very  difficult  bone  to  keep  in  position  after  it  is  reduced." 

Cross-examined.  "  In  complete  dislocation  the  ligaments 
which  connect  the  two  bones  would  have  been  severed  ;  this 
being  so,  it  would  be  difiicult  to  keep  the  bone  in  place ;  a 
partial  dislocation  now  is  no  evidence  that  it  was  not  prop- 
erly adjusted  at  first.  There  are  many  cases  of  swelling 
where  the  bones  could  not  be  replaced,  except  at  risk  to  pa- 
tient's life.  No  fractures  so  liable  to  deformity  as  those  of 
fore-arm  ;  occur  when  patient  has  had  the  best  of  treatment. 
In  this  case  no  evidence  of  malpractice.  Would  not  be  sur- 
prising if  patient  had  died  of  erysipelas.  The  roller  (ini- 
tial) bandage  was.  necessary,  the  injury  required  it ;  would 
have  been  bad  surgery  not  to  have  used  it.  Not  bad  surgery 
in  any  case  to  use  straight    sphnts.      Carrying   hand  only 


FRACTURES   NEAR   THE   ELBOW-JOINT.  55 

in  sling  would  have  had  the  effect  I  now  see  in  plaintiff's 
arm." 

Dr.  Wood,  gi'aduate  of  Castleton  Medical  College,  testified, 
that  "  there  appears  to  have  been  fracture  of  radius,  and 
there  is  want  of  motion  in  the  hand  ;  arm  crooked,  fracture 
partly  in  apposition,  bones  partially  override  and  drop  down 
in  interosseous  space.  Duty  of  surgeon  to  ascertain  nature 
of  injur}'-,  put  ends  of  bones  in  natural  position,  and  apply 
proper  dressing  to  keep  them  in  position  ;  if  no  swelling,  not 
difficult  to  ascertain  when  in  natural  position.  No  other 
treatment  would  be  good  surgery.  No  tendency  in  bones  to 
adjust  themselves.  In  simple  fracture  without  complication, 
would  not  use  'primary  bandage.  Surgeon  often  makes  a 
temporary  dressing  at  first,  until  he  can  better  it,  and  after, 
if  found  doing  well,  lets  it  remain.  Surgeon's  duty  to  read- 
just fracture,  in  case  of  displacement,  if  he  can.  Head  of 
radius  is  slightly  out  of  place  ;  deformity  about  wrist  neces- 
saril}'-  follows.  Cannot  say  whether  dislocation  is  from  orig- 
inal injury  or  from  the  fractured  bone  falling  into  interos- 
seous space.  Think  better  job  ought  to  have  been  done. 
Attending  surgeon  is  a  better  judge.  Might  have  been 
worse,  if  no  attempt  to  set  them." 

Cross-examined.  "  Original  injuries,  fracture  of  radius  a 
little  below  middle ;  partial  or  entire  dislocation  of  head 
of  radius,  and  consequent  rupture  of  ligaments.  Cannot  say 
external  condyle  was  fractured.  Cannot  say  what  has  caused 
impairment  of  flexion  and  extension.  I  attribute  it  to  bony 
matter.  It  is  a  reasonable  hypothesis  to  attribute  this  bony 
matter  to  fracture  in  this  locality.  With  all  these  complica- 
tions would  hope  for  a  better  result ;  I  doubt  whether  I  should 
expect  it.  I  should  expect  a  better,  but  nothing  like  a  per- 
fect arm.  I  might  be  disappointed.  I  know  Professor  Gross. 
Am  not  familiar  with  Hamilton's  work  on  Fractures.  Think 
it  is  standard  authority.  Never  treated  a  case  like  this  with 
all  its  complications.  In  simple  fracture,  to  find  bones  fall 
into  interosseous  space  would  be  no  evidence  of  lack  of  skill 
or  attention.     They  will  fall  into  that  space  in  spite  of  best 


56  CIVIL  MALPRACTICE. 

attention.  There  is  always  some  deformity.  Tendency  of 
fragments  into  interosseous  space,  and  arm  crooked,  duty  of 
surgeon  to  straighten  it.  Can  only  be  done  when  circum- 
stances permit.  Great  prostration,  inclination  to  lock-jaw, 
or  inflammation,  would  forbid  any  interference.  Arm  doing 
well  to  fourteenth  day,  then  swelling,  discoloration  and  de- 
pression ;  tendency  for  bones  to  fall  into  interosseous  space  ; 
good  surgery  would  not  disturb  it." 

Dr.  Gordon  testified  "  to  fracture  and  depression  of  radius. 
Thinks  condyle  of  humerus  is  broken.  Swelling  in  cases 
like  this  would  differ  in  different  people.  Should  have  hoped 
for  a  better  result.  Would  have  tried  to  counteract  tendency 
of  bones  to  fall  into  interosseous  space.  Arm  considerably 
impaired  in  its  use.  There  is  partial  dislocation  of  head  of 
radius,  due  to  fracture  of  external  condyle,  or  depression  at 
centre  of  radius.  If  there  had  been  a  dislocation  of  radius 
at  time  of  fall,  an  examination  would  easily  have  discovered 
it.  No  complication  of  the  case  would  relieve  surgeon  from 
putting  bones  in  natural  apposition." 

Cross-examined.  "■  If  bones  were  put  and  kept  in  apposi- 
tion, the  arm  would  be  straight.  Surgeon's  duty  to  keep 
them  so,  if  he  can.  I  would  not  say  he  could  do  so  in  all 
cases.  I  would  have  hoped  and  expected  a  better  result. 
The  result  obtained  is  no  evidence  of  improper  treatment. 
When  I  say  I  hoped  better  result  in  this  case,  I  doubt  the 
character  of  original  injuries.  With  all  the  complications 
named,  the  man  has  a  pretty  good  arm.  The  surgeon  in 
charge  is  the  best  judge  of  what  should  be  done  in  such  a 
case.  There  are  cases  in  which  the  readjustment  would  not 
dare  be  attempted,  particularly  if  inflammation  was  going  on 
at  the  time." 

0.  H.  Uvans,  graduate  of  Jefferson  School,  Philadelphia, 
testified:  "  There  is  fracture  of  radius,  middle  third ;  disloca- 
tion of  radius  at  elbow  ;  dislocation  of  lower  end  of  ulna  ; 
some  injury  to  elbow-joint,  think  some  fracture  there.  Some 
bony  substance  there  only  would  prevent  extension.  One 
end  of  broken  radius  in  contact  with  ulna.    Might  have  been 


FRACTURES  NEAR   THE  ELBOW-JOINT.  57 

thrown  out  of  apposition  after  proper  adjustment.  Cannot 
tell  whether  better  job  should  be  expected.  No  complica- 
tions, in  simple  fracture,  would  in  a  majority  of  cases  get 
good  jobs.  In  this  case,  cannot  say  whether  better  result 
ought  to  be  required.  I  do  not  know  that  it  could  have  been 
any  better." 

Cross-examined.  "  There  are  some  cases  where  it  would 
be  bad  surgery  to  attempt  to  readjust;  surgeon  in  charge  is 
best  judge.  Taking  all  the  circumstance  in  this  case,  the 
result  is  as  good  as  could  be  reasonably  expected." 

FOE   DEFENDANT. 

Dr.  H.  Wardner^  graduate  of  Rush  Medical  College,  1856, 
testified  :  "  Am  defendant.  Found  plaintiff  very  pale,  pulse 
weak,  and,  as  he  said,  faint ;  in  short,  he  had  all  appearance 
of  severe  shock.  Made  a  careful  examination  of  his  injuries. 
Remarked  to  him,  they  were  bad.  Asked  him  if  he  would 
like  to  have  another  physician  called  in ;  he  replied  no. 
Found  fracture  of  radius,  lower  part  of  middle  third  ;  upper 
end  of  lower  fragment  was  drawn  inward  toward  ulna  by 
action  of  the  qu^dratus  ;  the  lower  end  of  upper  fragment 
was  pulled  outward  and  backward,  so  I  could  disthictly  feel 
the  sharp  end  of  an  oblique  fracture  under  the  skin  ;  head 
of  radius  dislocated  forward  on  humerus,  the  head  resting 
in  bend  of  elbow,  near  coronoid  depression.  I  discovered 
fracture  of  external  condyle ;  it  was  so  loose  that  on  touching 
it  motion  and  crepitation  was  very  distinct ;  there  was  a 
good  deal  of  effusion  of  blood  in  the  neighborhood  of  the  in- 
jury ;  considerable  swelling  from  that  effusion  ;  not  much 
swelling  at  seat  of  fracture  of  radius  ;  found,  also,  partial 
displacement  of  lower  end  of  ulna  ;  these  displacements  were 
necessarily  accompanied  by  rupture  of  the  orbicular,  the  an- 
terior and  external  lateral  ligaments  at  the  elbow,  also  a 
stretching  or  rupture  of  ligaments  attaching  lower  end  of 
ulna  to  radius ;  stretching  of  sacciform  membrane  ;  end  of 
ulna  crowded  downward  a  little,  not  a  marked  dislocation  ; 
hand   pronated,  sharp   ends   of   oblique   fracture  wounding 


58  CIVIL  MALPRACTICE.  . " 

muscles  and  tissues.  Prepared  two  splints  from  shingles,  a 
little  wider  than  arm,  reaching  from  elbow  to  near  ends  of 
fingers ;  fracture  and  dislocations  reduced  by  extension  and 
manipulation  ;  applied  bandage  from  fingers  to  elbow,  care- 
fully, smoothly,  and  moderately  tight ;  took  especial  care  it 
should  not  be  too  tight ;  he  said  '  it  was  not  too  tight,  it 
felt  better.'  Cotton  batting  compresses  and  splints  were 
applied,  the  arm  in  extended  position  and  perfectly  straight. 
Splints  on,  in,  and  outside  of  arm.  The  arm,  with  my  hand 
supporting  elbow,  was  carefully  flexed  to  a  right  angle,  across 
front  of  body.  Thumb  upward.  Applied  figure  of  8  band- 
age to  elbow ;  hand  was  placed  in  a  double  sling,  one  under 
elbow.  Elbow  to  be  wet  with  cold  decoction  of  arnica  flowers. 
Advised  him  to  keep  still.  Would  see  him  in  the  morning. 
He  asked  if  it  would  be  proper  for  him  to  walk  about.  Told 
him  it  would,  that  patients  with  injury  to  upper  extremity 
were  always  allowed  to  walk ;  he  then  said,  '  You  need  not 
call  again  unless  I  send  for  you  ;  I  will  call  at  your  office.' 
For  next  six  daj^s  dressed  arm  repeatedly.  On  the  sixth 
day  a  pistol-handled  and  pasteboard  splint  was  laid  along 
arm,  bandages  replaced,  arm  flexed,  thumb  pointing  upward. 
This  dressing  was  not  removed  until  fourteenth  day,  plain- 
tiff, in  mean  time,  stating  his  arm  was  feeling  comfortable 
and  doing  well.  From  ninth  to  twelfth  day  did  not  see  him. 
When  next  seen,  said  arm  was  feeling  very  well,  but  the 
crooked  splint  had  hurt  him  the  night  before,  and  he  had 
taken  it  off,  and  had  reapplied  it  himself.  (This  was  6  P.  M., 
and  arm  appeared  in  good  position.)  Told  him  he  must 
come  to  my  office  the  first  thing  next  morning.  Came  next 
day,  hand  in  sling  of  his  own,  and  crooked  splint  in  his  hand. 
Undressing  arm  found  for  first  time  a  slight  depression  of 
ends  of  bones.  Arm  dressed  in  plaster  of  Paris.  Twenty- 
first  day  after  injury  swelling  had  subsided  considerably,  plas- 
ter bandage  somewhat  loosened.  Cut  a  strip  out  of  it  and 
rebandaged  it,  arm  supported  as  before ;  told  him  to  work 
fingers  to  prevent  adhesions  in  muscles  of  fore-arm.  Dressed 
arm  on  28th  day.     During  fifth  week  he  was  instructed  to 


FRACTURES   NEAR   THE   ELBOW-JOINT.  59 

remove  dressing  himself,  and  rub  arm  with  stimulating  em- 
brocations, also  exercise  his  arm,  work  his  elbow  and  hand 
every  day.  From  eighth  to  tenth  day  of  treatment  I  made 
motion  to  prevent  anchylosis,  or  stiffening  of  joints.  Mr. 
R.  returned  splints  during  sixth  week,  from  which  time  con- 
sidered him  dismissed.  Told  him  to  exercise  arm  gently, 
and  that  he  would  not  be  able  to  work  for  several  months. 
Shortly  after  this  he  came  to  my  ofl&ce  and  said  he  had  been 
at  work  at  the  bench  shoving  a  jack-plane,  and  said  his  arm 
began  to  pain  him.  He  showed  me  how  he  used  his  hands, 
—  left  hand  on  plane  and  the  other  shoving  it.  I  told  him  he 
had  gone  to  work  too  soon  at  severe  work  ;  he  must  work  it 
gently.  I  do  not  think  I  neglected  anything.  I  believe  the 
treatment  was  correct,  and  the  result  better  than  I  promised 
him  it  would  be." 

Cross-examined.  "  When  called,  went  immediately. 
Kept  some  notes  of  case  as  it  progressed.  On  the  14th  day 
thought  it  improper  to  interfere  with  the  arm.  On  21st 
day,  inflammation,  heat  of  weather,  and  such  slight  increase 
of  depression,  did  not  feel  warranted  in  making  a  refracture. 
Think  he  would  have  lost  arm,  may  be  his  life.  Would  not 
expect  such  a  depression  in  simple  fracture." 

Dr.  Dunning  testified  :  "  Am  a"  graduate  ;  practised  twenty 
years.  Judging  from  present  condition  there  is  fracture  of 
radius,  lower  third,  very  slight  depression  ;  dislocation  of 
head  of  radius,  and  fracture  of  external  condyle  of  humerus, 
and  partial  displacement  of  ulna.  There  are  cases  of  simple 
fracture  where  bones  fall  into  interosseous  space,  and  where 
it  cannot  be  prevented.  In  many  cases  it  is  most  difficult  to 
hold  radius  in  proper  position.  Its  being  out  of  place  is  no 
evidence  that  it  was  not  first  properly  set.  Heard  Dr.  Ward- 
ner's  testimony.  His  treatment  was  in  accordance  with  ap- 
proved surgery.  Proper  to  place  arm  so  as  to  bring  fracture 
in  as  near  apposition  as  possible.  Pistol  splint  ought  to  be 
used.     No  better  means  to  use." 

Cross-examined.  "  Heard  plaintiff's  testimony,  as  to 
dressing.     It  was  proper.     I  do  not  make  promises  in  fract- 


60  CIVIL   MALPRACTICE. 

ure  cases.  Surgery  is  not  an  experiment.  Depression 
should  have  been  arrested  on  14th  day,  by  the  means  used, 
if  directions  had  been  obeyed.  I  account  for  present  condi- 
tion only  on  the  ground  that  the  appliances  were  not  kept 
on,  or  directions  not  followed  out.  I  cannot  tell  original 
position  of  fragments.     I  tried  to  discover  but  cannot  say." 

Br.  Tabor  testified  :  "  Have  practised  over  thirty  years. 
There  has  been  fracture  of  radius  and  of  external  condyle. 
Dislocation  of  head  of  radius  would  make  it  more  difficult  to 
obtain  a  good  result.  Fractured  condyles  are  considered  very 
dangerous,  as  inflammation  is  very  apt  to  set  in.  The  stop 
in  the  flexion  of  the  arm  is  caused  by  a  bony  deposit.  This 
may  take  place  in  spite  of  everything." 

Cross-examined.  "  If  the  fracture  had  these  complica- 
tions, he  should  not  work  for  three  to  six  months.  There  is 
not  a  very  considerable  depression  in  this  case  or  he  could 
not  have  so  much  rotary  motion.  He  has  two  thirds  of  the 
natural  rotary  motion." 

Dr.  F.  R.  Waggoner  testified  to  fractures  and  dislocations. 
"  Flexion  and  extension  nearly  half  destroyed.  Pronation 
and  supination  nearly  perfect.  Dr.  W.'s  treatment  was  an 
improvement  on  that  of  many  surgeons." 

Dr.  Brigham  testified :  "  Find  evidence  of  fracture  of  radius, 
&c.  The  evidence  of  fracture  of  condyle  is  the  fact  of  par- 
tial anchylosis  at  elbow-joint,  caused  by  bony  deposit.  If 
radius  and  ulna  touched  there  would  be  no  rotary  motion  at 
the  wrist.  The  result  is  better  than  could  ordinarily  be  ex- 
pected." 

Dr.  Wagmeyer  testified  :  "  "Was  educated  as  a  military  sur- 
geon in  Military  Academy  at  Vienna.  I  was  seven  years  at 
study.  I  graduated  at  Military  School.  I  have  practised 
medicine.  I  was  Professor  of  Medicine  in  Humboldt  Col- 
lege. Professor  of  Natural  Sciences,  College  of  Christian 
Brothers.  Was  in  Austrian  service  ;  then  took  service  in 
Hungary,  in  1848-9.  Am  a  Hungarian.  In  1850-1-2,  I 
was  surgeon  in  Spanish  navy.  In  1854-5-6,  was  surgeon  in 
Crimean  War.     Have  examined  plaintiff's  arm.     Find  fract- 


FRACTURES   NEAR   THE   ELBOW-JOINT.  61 

ures,  dislocations,  &c.  In  view  of  the  nature,  &c.,  &c.,  I  think 
in  such  a  case  as  this  I  should  have  preferred  amputation." 

Cross-examined.  "  There  is  a  fracture  of  condyle.  I  can 
feel  it  very  plain." 

The  evidence  being  all  in  the  plaintiff  took  a  nonsuit. 

The  testimony  in  the  foregoing  case  has  been  very  greatly 
abridged.  It  is,  however,  very  generally  given  in  the  words 
of  the  record.  The  case  is  one  in  which  the  "primary"  or 
"  initial "  bandage  was  used,  and  from  it  no  harm  resulted, 
owing  to  its  judicious  application,  "  especial  care  being  taken 
not  to  apply  it  too  tightly." 

Dr.  Dunning  gave  the  true  theory  of  "  setting  "  a  fracture, 
"  so  placing  the  limb  as  to  bring  fracture  in  as  near  apposi- 
tion as  possible." 

Lowe  v.  McNevins.^ 

The  evidence  in  the  court  below,  before  the  jury,  was  that 
the  plaintiff's  (McNevins')  arm  was  broken  in  the  elbow- 
joint.  The  defendant  (Lowe)  bound  up  the  arm  with  a  band- 
age, and  said  it  was  all  right ;  told  Mr.  and  Mrs.  McNevins 
to  wet  it  frequently  with  vinegar  and  wormwood.  He  then 
left,  and  did  not  return  to  see  his  patient  for  several  days. 
When  he  called  again,  he  examined  the  arm,  and  said  it  was 
doing  well.  Mrs.  McNevins  discovered  that  the  bones  were 
sticking  up,  and  sent  for  the  defendant.  He  came  and  ex- 
amined the  arm  again,  and  still  claimed  it  was  all  right ;  that 
the  bone  which  stuck  up  was  attached  to  the  skin  and  would 
come  all  right ;  and  that  they  must  rub  it  with  oil.  He  said, 
also,  that  the  patient  would  outgrow  the  deformity  in  five  or 
six  days.  Said  he  had  cured  a  broken  leg  in  New  Boston 
that  Drs.  Willits  and  Harrell  could  not  cure  ;  also  told  of 
the  great  cures  he  had  performed  in  Wisconsin,  where  he 
had  a  large  practice.  The  jury  found  for  the  plaintiff  ;  dam- 
ages, 1700.  Appealed. 

Mr.  Justice  Laweence  delivered  the  opinion  of  the  court. 

1  40  111.  209. 


62  CIVIL  MALPEACTICE. 

"  This  was  an  action  brought  against  the  appellant  for 
malpractice  as  a  surgeon  and  plij^sician.  In  the  third  and 
fourth  instructions  for  the  plaintiff,  the  court  told  the  jury- 
that  the  defendant,  if  he  held  himself  out  as  a  physician,  was 
liable  for  whatever  damage  may  have  accrued  to  the  plaintiff 
by  reason  of  any  want  of  care  or  skill  on  his  part,  whether  he 
charged  fees  or  not.  This  states  the  responsibility  of  the 
physician  too  strongly,  as  it  requires  the  highest  degree  of 
care  and  skill,  whereas  only  reasonable  care  and  skill  are 
necessary. 

As  to  the  payment  of  fees,  the  instruction  is  unobjec- 
tionable. If  a  person  holds  himself  out  to  the  public  as  a 
physician,  he  must  be  held  to  ordinary  care  and  skill  in  every 
case  of  which  he  assumes  the  charge,  whether  in  the  particu- 
lar case  he  has  received  fees  or  not.  But  if  he  does  not  pro- 
fess to  be  a  physician,  nor  to  practise  as  such,  and  is  merely 
asked  his  advice  as  a  friend  or  neighbor,  he  does  not  incur 
any  professional  responsibility.  The  case  of  Ilitchey  v.  West^ 
23  111.  385,  is  to  be  understood  in  this  sense.  The  judgment 
must  be  reversed  because  the  instructions  required  the  high- 
est degree  of  care  and  skill.  Judgment  reversed.'''' 

This  case  was  finally  settled  for  |200,  pending  a  new  trial. 

WiLMOT  V.  Howard.! 

"  This  was  an  action  on  the  case  against  the  defendant  for 
damages  occasioned  to  the  plaintiff  by  want  of  skill  of  the  de- 
fendant as  a  surgeon,  in  setting  the  plaintiff's  arm,  and  for 
negligence  and  inattention  to  the  same  after  it  was  set. 

Plea,  the  general  issue,  and  trial  by  jury,  June  term, 
1866. 

The  plaintiff  is  the  minor  son  of  the  next  friend,  Daniel 
C.  Wilmot,  and  was,  at  the  time  of  the  injury  complained 
of,  seven  years  of  age,  and  resided  with  his  father. 

The  counsel  for  the  plaintiff  introduced,  evidence  tending 
to  show,  that  about  the  9th  of  June,  1863,  the  plaintiff  fell 

1  39  Vei-mont,  447. 


FRACTURES  NEAR   THE   ELBOW-JOINT.  63 

and  broke  one  of  the  bones  of  the  fore-arm,  and  that  the 
father  of  the  boy  took  him  to  the  defendant's  to  have  his  arm 
set,  and  otherwise  dressed  and  attended  to ;  that  the  defend- 
ant, who  professed  to  be  a  surgeon,  undertook  to  set  and 
take  charge  of  the  fractured  arm  ;  that  he  did  set  it,  but  in 
doing  so,  and  in  dressing  the  arm,  he  did  not  use  ordinary 
skill,  and  that  by  reason  of  an  improper  bandage,  and  putting 
on  the  bandage  too  tight,  it  caused  pain  and  suffering  to  the 
plaintiff,  and  mortification,  decay,  and  the  entire  loss  of  the 
use  of  the  arm.  There  was  evidence  tending  to  show,  that 
when  the  defendant  set  the  arm  he  dressed  it  by  first  wind- 
ing a  bandage  around  the  arm  very  tight,  from  near  the  hand 
to  very  near  or  quite  to  the  elbow,  then  put  on  the  splints 
outside  of  this,  then  another  bandage  wound  around  the  arm 
tight  from  near  the  hand  to  the  elbow,  over  the  splints ; 
and  the  testimony  of  several  practising  surgeons  was  given, 
which  tended  to  show  that  an  inner  bandage  was  improper, 
unnecessary,  and  detrimental,  and  that  the  tight  manner  in 
which  this  was  put  and  kept  on,  in  their  opinion,  caused  the 
arm  to  perish  and  mortify.  The  plaintift''s  counsel  further 
gave  evidence  tending  to  prove,  that  as  the  father  was  about 
to  leave  the  office  of  defendant,  it  was  the  defendant's  sug- 
gestion, agreed  and  arranged  bj^'them  — this  being  Wednes- 
day—  that  on  the  succeeding  Sunday  the  father  of  the  boy 
should  take  him  to  the  office  of  the  defendant  to  have  the  arm 
dressed,  or  whatever  else  its  condition  should  require  ;  that 
immediately  after  the  arm  was  set,  it  became  and  continued 
very  painful,  on  account  of  the  improper  and  unskilful  band- 
age and  dressing ;  that  on  Friday  following,  the  defendant 
was  passing  by  the  house  of  the  father  of  the  boy,  when  the 
father  called  the  defendant  in  to  see  the  arm  ;  and  that  he 
then  informed  him  that  the  bandage  was  too  tight,  and  that 
it  caused  great  pain  to  the  arm,  and  that  it  had  done  so  ever 
since  he  set  it ;  that  the  boy  had  been  in  great  distress  and 
complained  of  the  bandage  being  too  tight,  and  of  great  pain 
in  his  arm,  and  called  the  defendant's  attention  to  the  fact 
that  the  hand  of  the  broken  arm  was  swollen   and   blistered 


64  CIVIL  MALPRACTICE. 

on  the  fingers.  The  evidence  tended  to  show  that  the  hand 
had  become  purple,  and  that  the  defendant  said  he  would 
not  undo  the  arm ;  that  then  he  called  his  attention  to  one  of 
the  splints  being  up  so  high  as  to  interfere  with  the  arm  at 
the  elbow,  and  that  the  defendant  thereupon  unbound  the 
outer  bandage  far  enough  to  slip  down  the  inner  splint  so 
that  it  would  not  prevent  bending  the  elbow,  and  put  on  the 
bandage  again  as  it  was  before,  after  thus  adjusting  the  splint 
on  the  inside  of  the  arm. 

The  plaintiff  further  gave  testimony  tending  to  prove  that 
the  defendant  then  told  the  plaintiff  he  need  not  fetch  the 
boy  to  his  office  at  all,  and  agreed  to  call  and  see  the  arm  the 
next  Monday  or  Tuesday,  at  said  Wilmot's  ;  that  on  the  fol- 
lowing Tuesday  the  defendant  passed  by  the  house  of  the 
plaintiff  and  did  not  call,  and  never  after  that  called  upon  or 
saw  the  arm. 

The  defendant  gave  testimony  tending  to  prove  that  on 
Friday,  when  the  father  of  the  plaintiff  called  defendant  in  to 
see  the  arm,  it  was  agreed  that  the  father  of  the  plaintiff,  on 
the  succeeding  Sunday,  should  take  the  plaintiff  to  the  de- 
fendant's ofiice  to  have  his  arm  dressed  if  it  needed  dressing, 
and  that  the  defendant  did  not  agree  to  call  at  the  house  of 
the  father  of  the  plaintiff. 

And  the  defendant  further  introduced  testimony  tending 
to  prove  that  on  several  occasions,  one  of  which  was  on  the 
next  Sunday  succeeding  said  Friday,  the  father  of  the  plain- 
tiff, not  in  the  presence  of  the  defendant,  told  individuals 
that  he  had  agreed  to  take  the  plaintiff  to  the  defendant's 
office  on  the  next  Sunday  after  said  Friday,  to  have  the  arm 
examined  and  dressed,  if  it  needed  dressing. 

Wilmot  testified  that  he  never  made  any  such  statement, 
but  admitted  that  he  had  stated,  on  one  or  two  occasions, 
that  at  the  time  the  defendant  first  set  the  arm,  it  was  un- 
derstood he  was  to  take  the  boy  to  the  defendant's  office  the 
next  Saturday  or  Sunday  after  it  was  first  set  b}^  the  defend- 
ant. It  was  admitted  on  the  part  of  the  plaintiff,  that  the 
plaintiff  was  not  taken  to  the  defendant's  office,  as  the  de- 


FRACTURES   NEAR   THE  ELBOW-JOINT.  65 

fendant  claimed  the  agreement  was,  and  that  the  defendant 
was  not  called  upon  or  requested  after  said  Friday  to  attend 
upon  the  plaintiff,  and  that  the  defendant  never  did  see  or 
attend  upon  the  arm  after  that  time. 

The  testimon}^  on  the  part  of  the  plaintiff  tended  to  prove, 
that  the  arm  was  not  well  and  properly  dressed,  and  that 
tlie  plaintiff  has  lost  the  use  of  his  arm  by  reason  of  the 
want  of  proper  skill  in  setting  the  same,  on  the  part  of  the 
defendant,  and  by  reason  of  negligence  and  inattention  to 
the  same,  on  the  defendant's  j)art  after  it  was  set. 

The  defendant's  testimony  tended  to  prove  that  the 
plaintiff's  arm  was  well  and  skilfully  dressed  and  set,  and 
that  the  loss  of  the  use  of  the  arm  resulted  from  the  peculiar 
injury  of  the  same  at  the  time  it  was  broken,  and  from  the 
fault  and  negligence  of  the  father  of  the  plaintiff  in  not 
bringing  the  plaintiff  to  the  office  to  be  dressed  and  attended 
to  as  he  had  agreed  to  do,  and  from  other  want  of  proper 
oare  and  attention. 

There  was  other  evidence  as  to  what  was  said  and  done 
and  agreed  upon  when  the  defendant  came  into  the  father's 
house  on  Friday  to  see  the  arm,  uj)on  the  part  of  both  par- 
ties ;  also  as  to  the  effect  of  the  defendant's  treatment,  the 
injury  to  the  arm  on  account  of  the  manner  of  dressing,  neg- 
ligence, &c.,  of  the  defendant,  and  the  treatment  by  other 
surgeons. 

The  counsel  for  the  defendant  claimed  to  the  jury  in  ar- 
gument that  if  the  damage  to  the  arm  resulted  in  whole  or 
in  part  from  the  mismanagement  and  negligence  of  those 
having  the  care  and  management  of  the  plaintiff,  that  the 
plaintiff  is  not  entitled  to  recover  ;  and  stated  to  the  jury 
that  he  presumed  the  court  would  so  charge.  The  court 
treated  this  as  properly  raising  and  presenting  the  question. 
The  court  did  not  so  charge. 

No  other  requests  were  made  by  the  defendant's  counsel. 

The  court  charged  the  jury  fully  upon  all  points  presented 
by  the  evidence,  and  no  exceptions  were  taken  to  any  neglect 
or  omission  to  charge,  or  to  the  charges  as  given,  except  as 

5 


66  CIVIL  MALPEACTICE. 

heretofore  stated.  In  the  course  of  the  charge  the  court  told 
the  jury  that  there  was  an  implied  obligation  on  a  man  who 
holds  himself  out  to  a  community  as  a  surgeon,  and  practising, 
that  he  should  possess  the  proper  skill  in  surgery  ;  that  is,  not 
the  highest  degree  of  skill  that  by  study  and  experience  the 
profession  is  susceptible  of,  or  that  is  possessed  by  the  most 
eminent  surgeons,  but  the  ordinary  skill  of  the  profession 
generally,  such  degree  of  knowledge  and  skill  as  surgeons 
commonly  possess,  such  as  is  common  among  surgeons  who 
practise  that  profession ;  but  that  want  of  such  skill  would 
not  make  the  surgeon  liable,  unless  it  was  also  shown  that 
the  injury  complained  of  resulted  from  and  was  caused  by 
the  want  of  such  skill  as  a  surgeon  is  required  to  pos- 
sess. 

The  defendant's  counsel  excepted  to  this  charge  so  far  as 
it  relates  to  the  degree  of  knowledge  and  skill  a  surgeon 
should  possess. 

As  to  the  declarations  of  Daniel  C.  Wilmot,  which  the  de 
fendant  claimed  to  have  proved,  to  the  effect  that  he,  Wil- 
mot, had  agreed  on  that  Friday  to  take  the  boy  to  the  de- 
fendant's office  the  next  Sunday  thereafter,  no  request  was 
made  to  charge  in  relation  to  the  evidence  as  to  such  declara- 
tions ;  but  both  of  the  counsel  who  argued  the  case  for  the 
defendant  stated  to  the  jury  that  they  did  not  claim  that 
such  declarations  were  evidence  in  chief  to  prove  the  fact  of 
such  agreement,  but  that  they  were  evidence  tending  to  dis- 
credit and  impeach  Daniel  C.  Wilmot,  and  the  case  was  so 
argued  to  the  jury  on  both  sides,  and  the  court  so  charged  the 
jury.  After  the  court  had  charged  the  jury,  the  defendant's 
counsel  excepted  to  the  charge  on  this  point,  claiming  then 
that  such  subsequent  declarations  of  Daniel  C.  Wilmot  were 
evidence  in  chief.  The  court  then  informed  defendant's 
counsel  that  the  charge  was  as  they  claimed  in  their  argu- 
ment to  the  jury,  but  that  the  court  would  state  in  the  ex- 
ceptions the  facts,  so  that  the  Supreme  Court  might  decide 
whether,  under  such  circumstances,  they  were  entitled  to  have 
their  exceptions  allowed,  and  if  so,  the  error,  if  any,  might 


FEACTUEES  NEAE  THE  ELBOW-JOINT.        67 

be  corrected  by  the  Supreme  Court.     The  facts  were  stated 
for  that  purpose. 

As  to  what  the  defendant's  counsel  claimed,  as  heretofore 
stated,  as  to  the  effect  of  mismanagement,  negligence,  or 
want  of  proper  care  and  attention  on  the  part  of  the  plaintiff, 
and  those,  other  than  the  defendant,  having  the  care  and  man- 
agement of  him,  the  court  charged  the  jury,  as  to  this  branch 
of  the  case,  and  its  effect  on  the  rights  of  the  parties,  and 
upon  the  damages,  to  the  satisfaction  of  the  defendant,  and 
so  that  no  exception  was  taken,  except  the  court  did  not 
charge  that  if  damage  or  injury  resulted,  in  part,  from  the 
mismanagement  and  negligence  of  those  having  the  care  and 
management  of  the  plaintiff,  that  the  plaintiff  could  not  re- 
cover, —  and  for  omission  so  to  charge  the  defendant  ex- 
cepted. 

The  jury  returned  a  verdict  for  the  plaintiff. 

Appealed. 

FOE   THE  DEFENDANT. 

The  negligence  of  those  having  the  care,  charge,  and  cus- 
tody of  the  plaintiff  was  not  merely  permissive,  like  permit- 
ting, negligently,  a  child  to  play  in  the  public  highway,  or 
otherwise  be  in  the  way  of  danger ;  but  is  active,  affirmative 
negligence. 

In  a  case  of  mere  permissive  negligence,  —  permitting 
a  child  to  be  improperly  in  the  highway,  —  it  was  held  in 
Robinson  v.  Cone,  22  Vt.  213,  that  if  the  child  were  injured 
by  the  negligence  of  the  defendant,  he  would  not  be  pre- 
cluded from  his  redress ;  that  if  the  defendant  knew  the 
child  was  in  the  highway,  he  was  bound  to  exercise  propor- 
tionate watchfulness  and  the  utmost  care.  That  case  was 
decided  mainly  upon  the  authority  of  the  case  of  Lynch  v. 
Nurdin,  1  Ad.  &  El.  N.  S.  28  (41  E.  C.  L.  422),  in  which  a 
similar  decision  has  been  made.  And  the  similar  decision  in 
Birge  v.  Gardiner,  19  Conn.  507,  was  also  made  upon  the 
authority  of  Lynch  v.  Nurdin,  and  upon  the  authority  of 
these  two  cases,  and  upon  a   like  state  of  facts,  the  same 


GjS  CIVIL  MALPRACTICE. 

decision  has  since  been  made  in  Connecticut  in  the  case  of 
Daley  v.  Norwich  ^  Worcester  R.  R.  Co.  26  Conn.  591. 

But  the  case  of  Robinson  v.  Cone  is  opposed  to  the  deci- 
sion in  Hartjield  v.  Roper^  21  Wend.  614,  and  to  the  decision 
in  Wright  v.  Maiden  ^  Melrose  R.  R.  Co.  4  Allen,  283,  in 
both  of  which,  negligence  on  the  part  of  the  parents  in  al- 
lowing the  child  to  be  in  the  way  of  danger,  was  held  to 
preclude  the  recovery,  by  the  child,  of  damages  for  injury 
received. 

And  the  case  of  Lynch  v.  Nurdin  has  been  questioned  in 
Lygo  V.  Newhold,  9  Exch.  302 ;  S.  C.  14  Eng.  L.  &  Eq.  507. 

But  the  negligence  on  the  part  of  the  parents  in  the  case 
at  bar  is,  in  its  character  and  in  consequences,  entirely  differ- 
ent from  the  permissive  negligence  of  the  parents  who  allow 
their  child  to  be  in  the  way  of  danger ;  and  therefore  the 
cases  cited  above  do  not  control  the  decisions  in  this  case. 
Here  the  parents  knew  the  danger  of  the  child  and  had  the 
means  of  preventing  the  injury,  and  neglected  to  use  them, 
and  permitted  the  child  to  remain  in  danger,  and  were  also, 
as  the  testimony  tended  to  prove,  guilty  of  positive  misman- 
agement in  the  care  of  the  child. 

The  case,  in  its  facts,  is  like  the  case  of  Solly  v.  Boston 
G-as-light  Go.  8  Gray,  123. 

The  distinction  between  the  two  classes  of  cases  is  the  dif- 
ference between  permitting  a  child  to  be  in  the  way  of  dan- 
ger, and  permitting  a  child,  known  to  be  in  danger,  to  re- 
main in  danger. 

And  there  is  this  further  difference  between  the  case  of 
Rohinsoyi  v.  Cone  and  the  case  at  bar  :  in  Robinson  v.  Cone 
the  injury  to  the  plaintiff  was  the  result  of  direct  force,  ex- 
ercised and  controlled  by  the  defendant,  and  the  reasoning 
of  the  court  was  directed  to  and  upon  that  state  of  facts  ; 
while,  in  this  case,  the  negligence  on  the  part  of  the  defend- 
ant, if  any,  consisted  in  the  omission  of  any  afl&rmative  act, 
and  the  child  was  all  the  time  in  the  care  and  under  the  con- 
trol of  its  parents. 


FRACTUEES  NEAR  THE  ELBOW-JTOINT.  69 

FOR  THE  PLAINTIFF. 

1.  The  objection  of  tlie  defendant  that  tlie  sayings  of  the 
procJiein  ami  ought  to  have  been  received  and  considered  as 
testimony  in  chief,  is  not  well  taken.  Vauglian  v.  Porter,  16 
Vt.  266. 

2.  The  charge  of  the  court,  as  to  the  degree  of  knowledge 
and  skill  in  his  profession  a  surgeon  is  required  to  possess, 
was  correct.  Patten  v.  Wiggin,  Am.  Law  Reg.  1862-3, 
401 ;  1  Hilliard  on  Torts,  2d  ed.  253. 

3.  The  court  did  not  err  in  omitting  to  charge  the  jury 
that,  if  the  injuries  resulted  in  whole  or  in  part  from  the 
mismanagement  of  those  having  the  care  and  management 
of  the  plaintiff,  the  plaintiff  could  not  recover. 

1.  Even  if  that  be  the  law  applicable  to  cases  of  this  sort, 
the  defendant  was  not,  under  the  circumstances  of  this  case,, 
entitled  to  that  charge. 

The  defence  set  up  was :  1st.  That  the  arm  was  well  and 
skilfully  set  and  dressed.  2d.  That  the  loss  of  the  use  of  the 
arm  resulted  from  the  peculiar  nature  of  the  injury,  and 
from  the  fault  and  negligence  of  the  father  in  not  bringing 
the  plaintiff  to  the  defendant's  office,  to  be  dressed  and  at- 
tended, as  he  agreed  to  do,  and  from  other  want  of  proper 
care  and  attention. 

What  evidence  was  given  tending  to  show  that  the  plain-. 
tiff  was  to  be  taken  to  the  defendant's  office  to  be  treated, 
which  was  neglected,  the  exceptions  do  not  state ;  but  we  are 
to  conclude  that  whatever  might  have  fallen  out,  of  that 
character,  was  disposed  of  in  the  course  of  the  chai'ge  in  con- 
nection with  the  whole  evidence,  to  the  satisfaction  of  the 
defendant,  so  that  the  court  below  considered  it  of  no  impor- 
tance to  state.  We  are  to  presume  that  the  charge  was  cor- 
rect, and  sufficiently  comprehensive,  and  that  what  evidence 
there  might  have  been  tending  to  show  want  of  care,  was 
properly  disposed  of  by  specific  directions,  as  was  the  evi- 
dence in  relation  to  the  plaintiff  being  carried  to  the  defend- 
ant's office. 


70  CIVIL  MALPRACTICE. 

2.  The  exception  is  not  properly  before  the  court.  There 
was  no  request  made  that  the  court  would  charge  in  a  par- 
ticular way,  and  so  no  refusal.  The  exception  is  only  to  an 
omission  to  charge.  It  is  not  sufficient  that  counsel  shall  say, 
in  the  course  of  argument  to  the  jury,  that  he  presumes  the 
court  will  charge  in  a  particular  manner. 

3.  But  the  proposition  is  not  sound  law,  to  the  extent 
claimed,  and  so  the  court  was  not  bound  to  notice  it. 
Vaughan  v.  Porter,  16  Vt.  266. 

The  opinion  of  the  court  was  delivered  by  Baeeet,  J. 

In  this  action  the  plaintiff  claims  to  recover  damages  for 
injury  sustained  by  reason  of  the  unskilful  and  negligent 
manner  in  which  the  defendant  dressed,  treated,  and  attended 
the  plaintiff's  fractured  arm. 

A  question  is  made  as  to  the  instructions  given  to  the 
jury  touching  certain  sayings  of  the  plaintiff's  father.  Those 
sayings  had  been  treated,  by  counsel  on  both  sides,  in  the 
argument  to  the  jury,  as  bearing  only  on  the  credit  of  said 
father  as  a  witness  testifying  for  the  plaintiff  to  material 
facts  in  the  case.  The  court,  in  the  charge,  had  given  in- 
structions conformable  to  the  views  taken  by  counsel  in  the 
argument.  No  prior  request  had  been  made  to  the  court  on 
this  subject.  After  the  charge  had  been  given,  the  defend- 
ant's (30unsel  requested  the  court  to  instruct  the  jury  that 
said  sayings  of  the  father  were  to  be  regarded  and  consid- 
ered as  evidence  in  chief.  These  facts  are  certified  to  this 
court  for  the  purpose  of  having  us  decide  whether  the  de- 
fendant was  entitled  to  exception  on  this  point.  In  the 
opinion  of  this  court,  the  defendant  was  not  entitled  to  ex- 
ception. If  the  defendant  claimed  any  special  force  or  char- 
acter, or  application  for  this  evidence,  he  should  have  made 
it  known  before  the  close  of  the  argument.  On  the  general 
subject  we  adhere  to  the  rule  pronounced  in  Vaughan  v.  Por- 
ter, 16  Vt.  266,  and  reasserted  in  Cady  v.  Owen,  by  Poland, 
C.  J.,  31  Vt.  598.  But  the  present  case  goes  beyond  those 
cited,  and  asks  the  court,  in  favor  of  the  party,  to  repudiate 
the  character  and  application  which  he  has  claimed  for  the 


FRACTURES   NEAR   THE   ELBOW-JOINT.  71 

evidence  in  his  argument  to  the  jury,  upon  which  character 
and  application  the  counsel  for  the  other  side,  concurring 
with  his  opponent,  has  also  argued  the  case  to  the  jury,  and 
requires  the  court  to  put  the  evidence  to  the  jury  in  a  new 
character,  in  a  new  application,  and  to  lead  to  entirely  dif- 
ferent results  from  that  claimed  for  it  in  the  argument.  This 
certainly  is  a  novelty  in  practice.  It  is  understood  to  be  the 
object  of  an  argument,  among  other  things,  to  apprise  the 
court  of  the  views  and  reasons  of  counsel  as  to  the  evidence, 
as  it  stands  related  to  the  legal  propositions  involved  in  the 
case,  and  to  apprise  the  opposing  counsel  of  the  same  things, 
and  enable  them  to  present  their  views  and  reasons  to  meet 
those  of  the  other  side ;  and  still  further  is  it  an  important 
and  leading  object  of  the  argument  to  bring  to  the  consid- 
eration of  the  jury  the  various  elements  and  features  of  the 
evidence  as  bearing  upon  the  various  propositions  of  fact 
which  the  jury  are  to  pass  upon,  and  aid  them  in  arriving 
at  just  results  from  the  evidence  as  to  those  propositions. 

The  course  proposed  and  pursued  by  the  defendant's  coun- 
sel in  this  case  would  thwart  all  these  purposes  and  objects  ; 
and  not  only  so,  but, would  directly  tend  to  embarrass  the 
court,  mislead  opposing  counsel,  and  confuse  and  confound 
the  jury. 

We,  therefore,  put  our  decision  of  this  point  solely  on  the 
ground  that  the  defendant  was  not  entitled  to  the  excep- 
tion, without  considering  whether  the  view  embodied  in  his 
unreasonable  request  was  correct  or  not.  We  think  the  court 
did  not  err  in  disregarding  the  request. 

The  point  made  in  the  exceptions  upon  the  part  of  the 
charge  that  related  to  the  skill  required  of  a  person  liolding 
himself  out  and  undertaking  to  practise  as  a  surgeon,  we 
have  no  occasion  to  take  time  with,  as  it  is  not  really  in- 
sisted on  and  urged  in  this  court.  We  remark,  however, 
that,  taken  in  its  relations  to  the  declaration  and  the  evi- 
dence, it  would  seem  to  be  entirely  proper,  and  as  favorable 
as  counsel  could  claim  for  their  client,  unless  they  would 
have  him  take  refuge  in  the  character  of  a  quack,  from  the 
consequences  of  his  practice  as  a  professed  surgeon. 


72  CIVIL  MALPRACTICE. 

The  most  important  feature  of  the  case  is  presented  by 
the  exceptions  to  the  omission  of  the  court  to  charge,  '  that 
if  the  damage  or  injury  to  the  plaintiff's  arm  resulted,  in  part^ 
from  the  mismanagement  and  negligence  of  those  having  the 
care  and  management  of  the  plaintiff,  that  the  plaintiff  could 
not  recover.' 

The  court  had  given  a  full  and  satisfactory  charge  upon 
every  other  feature  and  theory  of  the  defence,  and  of  course 
had  told  the  jury  that  if  the  defendant  had  exercised  the 
requisite  skill,  care,  and  attention  in  dressing  and  treating 
and  attending  to  the  fracture,  he  would  not  be  liable  ;  and 
also,  that  if  the  damage  or  injury  resulted  wholly  from  the 
fault  of  those  in  charge  of  the  plaintiff,  the  defendant  would 
not  be  liable.  Upon  the  case  as  situated  under  these  points 
and  features  of  the  charge,  the  request  not  complied  with 
assumes,  and  was  made  upon  the  assumption,  that  the  jury 
should  find  that  the  damages  and  injury  were  caused,  in  "part^ 
by  unskilfulness  and  negligence  of  the  defendant,  and  upon 
the  assumption  that  the  defendant  would  be  liable,  unless 
the  putting  of  that  point  to  the  jury  in  the  terms  of  the 
request  would  shield  him.  Every  other  theory  and  ground 
of  defence  was  made  available  to  him  by  the  charge  given, 
and  he  was  found  liable  notwithstanding.  The  point,  there- 
fore, is  this :  whether,  if  the  failure  of  the  plaintiff  to  get  a 
sound  arm  resulted,  in  any  part,  from  the  mismanagement 
and  negligence  of  those  having  charge  of  him,  the  defendant 
would  not  be  liable  at  all  in  this  action. 

This  question  is  to  be  considered  and  determined  with 
reference  to  both  the  law  and  the  evidence  applicable  to  the 
point. 

It  is  to  be  noticed  that,  upon  the  evidence,  there  is  no 
ground  of  pretence  that  any  mismanagement  or  negligence 
had  occurred  prior  to  the  Friday  after  the  original  dressing, 
at  which  time  the  defendant  was  called  in,  and  examined  the 
condition  of  the  limb  and  of  the  patient. 

The  evidence,  and  the  respective  claims  of  the  parties,  as 
to  the  agreement  on  that  Friday  about  the  plaintiff  being 


FEACTUKES  NEAE  THE  ELBOW-JOINT.  73 

seen  by  tlie  defendant  on  the  following  Sunday,  or  Monday, 
or  Tuesday,  were  submitted  to  the  jury  with  satisfactory  in- 
structions. 

Hence,  the  question  really  is,  whether,  upon  the  evi- 
dence, the  defendant  could  be  found  liable  in  this  action, 
even  though  the  failure  of  the  plaintiff  to  get  a  sound  arm 
resulted,  in  part,  from  the  mismanagement  or  negligence  of 
those  having  charge  of  the  plaintiff.  If  he  could,  then  he 
was  not  entitled  to  have  his  request  granted  ;  if  he  could 
not,  then  it  should  have  been  granted. 

It  seems  to  us  quite  clear,  that,  upon  the  evidence,  the 
defendant  might  well  have  been  held  liable,  even  though  the 
jury  should  have  found  that  the  damage  to  the  arm  resulted 
in  part  from  the  alleged  mismanagement  or  negligence  of 
those  having  charge  of  him. 

If  the  jury  should  have  found,  as  they  might  on  the 
evidence,  that  the  improper  manner  in  which  the  arm  was 
dressed  and  kept  till  the  Sunday  after  the  accident,  had 
brought  it  into  such  condition  that  the  plaintiff  must  inev- 
itably have  a  defective  arm,  the  defendant  would  be  liable 
to  an  action,  even  though  it  should  be  found  that  misman- 
agement or  negligence  in  those  having  charge  of  the  plain- 
tiff may  have  aggravated  the  case,  and  rendered  the  ulti- 
mate condition  of  the  arm  worse  than  it  otherwise  would 
have  been.  The  cause  of  action  would  have  become  per- 
fected before  the  alleged  mismanagement  or  negligence  would 
have  supervened.  There  is  no  pretence  that  the  parents  or 
attendants  of  the  plaintiff  had  anything  to  do  with  the  dress- 
ing of  the  arm.  If  the  jury  had  found  that  that  dressing 
was  such,  when  continued  according  to  the  directions  of  the 
defendant,  that  it  would  produce  a  defective  arm,  and  had 
that  effect,  then  the  right  of  action  would  have  been  per- 
fected though  the  ultimate  result  might  have  been  aggra- 
vated by  mismanagement  or  negligence.  In  the  cases  sup- 
posed, such  supervening  mismanagement  or  negligence  would 
bear  only  on  the  measure  and  amount  of  damage,  not  on  the 
right  of  action. 


74  CIVIL  MALPRACTICE. 

If  tlie  defendant  would  have  been  liable  in  either  of  the 
supposed  cases,  then  of  course  he  was  not  entitled  to  have  his 
request  granted.  In  this  respect  the  case  would  stand  by- 
analogy  upon  the  same  ground  as  a  common  class  of  cases, 
particularly  for  recovery  of  damages  caused  by  alleged  defects 
in  highways.  The  liability  of  the  town  is  established,  the 
injur}^  proved,  and  resulting  effects  become  the  subject  of 
inquiry  ;  whereupon  the  town  claims,  and  endeavors  to  prove 
that,  owing  to  mismanagement  or  negligence  in  treating  the 
injured  party,  the  consequences  have  been  aggravated.  Such 
showing  on  the  part  of  the  town  does  not  touch  the  cause 
and  right  of  action,  but  only  the  measure  and  amount  of 
damages. 

And  here  it  may  be  well  to  remark  that  this  just  illus- 
trates and  makes  plain  the  distinction  to  be  taken  between 
the  case  before  us  upon  the  precise  point  made  by  the  excep- 
tions, and  all  the  cases  cited  by  the  defendant's  counsel  as 
applicable  to  it. 

In  those  cases  the  alleged  negligence  on  the  part  of  the 
plaintiff  was  simultaneous  and  cooperating  with  the  alleged 
fault  of  the  defendant,  an  element  in  the  very  transaction 
which  constitutes  the  alleged  cause  of  action.  The  contrib- 
utory negligence  on  the  part  of  the  plaintiff,  in  all  the 
cases  that  have  been  held  to  preclude  his  right  of  recovery, 
has  entered  the  creation  of  the  cause  of  action,  and  not 
merely  supervened  upon  it,  by  way  of  aggravating  the 
damaging  results. 

These  views  leave  this  case  to  stand  upon  common  prin- 
ciples by  which  a  person  is  subjected  to  liability  for  the 
consequences  of  his  wrongful  acts  and  neglect,  and  as  the 
case  is  made  up,  it  would  seem  that  the  defendant  has  had 
accorded  to  him  every  legitimate  ground  and  means  of  de- 
fence. The  exceptions  state,  as  to  what  the  defendant's 
counsel  claim  as  to  the  effect  of  mismanagement,  negligence, 
or  want  of  proper  care  and  attention  on  the  part  of  the  plain- 
tiff, and  those  other  than  the  defendant  having  the  care 
and  management  of  him,  the  court  charged  the  jury,  as  to 


FRACTUKES   NEAR  THE  ELBOW-nJOINT.  75 

this  branch  of  the  case,  and  its  effect  on  the  rights  of  the 
parties  and  upon  the  damages,  to  the  satisfaction  of  the  de- 
fendant, and  so  that  no  exception  was  taken  except  the 
court  did  not  charge  that  if  the  damage  or  injury  resulted, 
in  part,  from  the  mismanagement  and  neghgence  of  those 
having  the  care  and  management  of  the  plaintiff,  the  plain- 
tiff could  not  recover. 

In  the  view  we  take  of  the  case,  we  do  not  find  occa- 
sion to  go  into  any  general  discussion  of  the  subject  as  it  is 
involved  in,  or  related  to,  the  cases  that  have  been  cited. 
This  case  stands  upon  simple  and  familiar  principles  in  no 
respect  in  conflict  with  any  of  the  decided  cases,  and  directly 
sustained  by  some,  so  far  as  they  stand  upon  concurring 
analysis.  Robinson  v.  Cone^  22  Vt.  213  ;  Biirje  v.  Crardiner^ 
19  Conn.  507 ;  Daley  v.  Norwich  R.  R.  Co.  26  Conn.  591." 


76  CIVIL  MALPRACTICE. 


CHAPTER    IV. 

FRACTURES  NEAR  WRIST- JOINT. 
Clapp  V.  WOOD.I 

The  plaintiff  fell  from  his  horse,  in  1854,  fracturing  one 
of  the  bones  of  the  fore-arm  and  dislocating  the  other 
wrist. 

It  appears  from  the  evidence  that  the  defendant  was  in 
attendance  upon  the  case  only  long  enough  to  set  the  bone, 
as  he  supposed  he  did,  and  reduce  the  dislocation,  another 
physician  being  called  in  the  next  morning.  This  latter  phy- 
sician died  before  the  trial  came  on. 

At  the  time  of  the  trial  the  dislocated  wrist-bone  pro- 
truded, the  fractured  bone  was  not  united,  the  hand  was 
twisted  in  towards  the  body,  and  the  whole  arm  was 
withered. 

Verdict  for  the  plaintiff,  |1,000  damages. 

Motion  for  a  new  trial.  Overruled. 

Appealed  to  Supreme  Court. 

Wood  v.  Clapp.^ 

Caruthers,  J.  "  The  defendant  held  himself  out  as  a 
physician  and  surgeon,  and,  as  such,  was  called  in  by  the 
plaintiff  to  treat  a  case  of  dislocation  or  fracture  of  the  arm, 
occasioned  by  a  fall  from  a  horse.  He  adopted  a  course  of 
treatment,  as  it  is  charged,  which  resulted  in  serious  and  per- 
manent injury  to  the  plaintiff.    For  the  injur}'-  thus  produced 

1  Boston  Med.  &  Surg.  Jour.  vol.  Ivi.  p.  148. 

2  4  Sneed  (Teno.)  R.  65. 


FRACTURES  NEAR  WRIST-JOINT.  77 

by  sucli  unsuccessful  treatment,  this  action  to  recover  dam- 
ages was  brought.  It  seems,  from  the  proof,  that  the  phiin- 
tiff  or  his  friends,  very  soon,  perhaps  after  the  first  or  second 
visit,  became  dissatisfied,  and  called  in  other  physicians,  and 
dismissed  the  defendant,  A  good  deal  of  professional  and 
other  evidence  was  introduced  on  the  subject  of  the  proper 
mode  of  treating  such  a  case,  professional  etiquette,  &c.  The 
jury  found  a  verdict  against  the  defendant,  and  assessed  the 
damages  at  one  thousand  dollars,  for  which  judgment  was 
given.  A  motion  for  a  new  trial  having  been  overruled,  the 
defendant  appealed  in  error  to  this  court. 

If  the  law  was  correctly  charged,  there  is  no  ground  upon 
which  the  judgment  can  be  reversed.  The  charge  of  his 
honor  is,  in  substance,  that  any  one  who  assumes  to  be  quali- 
fied for  the  exercise  of  any  profession,  art,  or  vocation,  is 
responsible  for  any  damages  which  may  result  to  those  who 
employ  him  from  the  want  of  necessary  and  proper  knowl- 
edge, skill,  and  science  which  such  profession  demands.  A 
man  who  enters  upon  the  legal  profession  and  solicits  busi- 
ness is  required  to  have  such  an  amount  of  legal  learning  as 
will  enable  hini  to  discharge  with  reasonable  skill  and  ability 
the  duties  incumbent  upon  him  in  his  profession.  If,  from 
want  of  such  knowledge  and  skill,  or  a  proper  degree  of  in- 
dustry, diligence,  and  attention  to  business  intrusted  to  him, 
his  client  sustains  injury,  he  is  responsible  in  damages.  The 
same  rule  applies  to  a  physician.  He  impliedly  contracts 
with  those  who  employ  him  that  he  has  such  skill,  science, 
and  information  as  will  enable  him  properly  and  judiciously 
to  perform  the  duties  of  his  calling.  If  he  should  be  defi- 
cient in  these  respects,  he  has  violated  his  contract,  and 
must  account  in  damages  for  any  malpractice  by  which  those 
who  employ  him  sustain  injury.  This  is  the  general  rule 
applicable  to  all  professions  and  avocations  in  which  men  are 
employed  to  act  for  others  in  any  particular  department  of 
business  requiring  skill,  art,  or  science.  The  law  does  not, 
however,  require  the  highest  degree  of  skill  and  science,  but 
only  such  reasonable  degree  as  will  enable  the  person  safely 


78  CIVIL  MALPRACTICE. 

and  discreetly  to  discliarge  tlie  duties  assumed.  The  failure 
of  a  course  of  treatment  is  not  by  any  means  conclusive  of 
that  want  of  professional  skill  by  the  practitioner  ;  as  such  a 
rule  would  be  harsh  and  unreasonable  in  application  to  any 
art  or  profession,  and  endanger  the  most  faithful  and  best 
informed.  In  application  to  this  particular  case,  the  court 
instructed  the  jury  that  the  defendant  was  only  responsible 
for  his  own  conduct,  and  not  for  that  of  those  who  succeeded 
him  in  the  management  of  the  case. 

It  is  objected  to  this  part  of  the  charge  that  it  does  not 
specifically  instruct  the  jury,  that  if  the  same  treatment  com- 
menced by  the  defendant  was  continued  subsequently  by 
other  physicians,  and  that  it  evinced  a  want  of  reasonable 
skill  from  which  the  injury  resulted,  the  defendant,  if  liable 
at  all,  should  only  be  held  responsible  for  a  just  proportion 
of  the  damages.  If  this  had  been  proper,  it  would  have  been 
the  duty  of  the  defendant  to  have  called  for  it,  before  the 
court  can  be  put  in  error.  But  we  are  not  aware  of  any 
principle  which  would  justify  such  a  charge.  He  certainly 
went  far  enough  when  he  told  the  jury  that  the  defendant 
was  not  liable  for  the  conduct  of  others,  but  only  for  the  in- 
jury produced  by  his  own  want  of  skill  or  judicious  treat- 
ment. If  the  fact  were  so,  it  would  be  no  excuse  for  him 
that  others  were  equally  unskilful,  and  continued  his  mal- 
practice. We  think  the  charge  laid  down  the  law  correctly 
in  every  resjoect.  There  is  no  profession  in  which  the  mem- 
bers should  be  held  more  strictly  liable  for  want  of  proper 
skill  and  science,  and  due  and  faithful  attention  to  their 
duties,  than  that  of  medicine.  The  health  and  lives  of  the 
people  are  in  their  hands,  and  but  few  are  qualified  to  judge 
of  their  pretensions.  Judgment  is  affirmed^ 

In  the  absence  of  the  record  of  the  testimony  in  this  case, 
the  decision  of  the  Supreme  Court  seems  to  be  most  unjust. 
The  result  of  the  treatment  was  most  disastrous,  but  that 
this  result  depended  upon  anything  the  first  physician  did 
or  did  not  do,  passes  belief.     The  patient  may  have  had 


FRACTURES  NEAR  WRIST- JOINT.  79 

abundant  reason  for  dismissing  him,  but  patients  frequently 
do  this  without  reason.  Thousands  of  times  reputable  physi- 
cians are  summarily  dismissed  and  the  veriest  charlatans  em- 
ployed instead,  from  whose  treatment  most  serious  results 
have  followed,  yet,  from  the  very  absurdity  of  the  thing, 
patients  have  never  before  or  since  this  case,  so  far  as  pub- 
lished cases  go,  instituted  an  action  against  their  first  physi- 
cian. The  nearest  case  to  it,  so  far  as  I  can  find,  is  that  of 
Noyes  v.  Allen,  S.  C.  Cambridge,  Mass.  Jan.  Term,  1856, 
Boston  Medical  and  Surgical  Journal,  vol.  liv.  109. 

BiGELOW,  J.  History.  —  Noyes,  while  pursuing  his  busi- 
ness as  peddler  in  Lowell,  was  thrown  from  his  sleigh,  being 
turned  over  upon  the  frozen  ground  which  was  covered  with 
a  slight  fall  of  snow.  He  was  carried  to  the  Washington 
House,  when  Dr.  Allen  was  called,  who,  after  making  such 
examination  as  he  thought  necessary  at  the  time,  occupying 
from  ten  to  fifteen  minutes,  stated  that  he  thought  no  bones 
were  broken  ;  but  finding  him  cold,  faint,  and  suffering  from 
a  violent  shock  to  the  whole  system,  —  complaining  of  his 
right  side  being  injured,  more  particularly  his  hip,  elbow, 
and  shoulder,  - —  directions  were  given  to  get  him  warm,  put 
his  feet  into  warm  water,  rub  him  thoroughly,  and  apply  hot 
spirits  and  wormwood  to  the  injured  parts.  There  was 
some  difficulty  in  the  use  of  the  arm,  —  supposed  to  arise 
from  laceration  of  the  ligaments  in  the  elbow-joint,  as  no 
fracture  was  detected  in  making  the  natural  movements  of 
rotation  and  flexion.  Dr.  Allen  called  the  next  morning 
(the  previous  visit  being  made  the  night  before),  and,  on 
first  inquiring,  was  assured  by  patient  that  he  was  much 
better,  and  thereupon,  without  asking  any  examination  of 
the  arm  or  further  treatment,  paid  and  discharged  his  med- 
ical attendant.  The  next  time  Dr.  A.  heard  of  the  case. — 
having  no  suspicion  but  that  this  stranger  had  perfectly  re- 
covered and  was  about  his  usual  business  —  was  nearly  three 
months  afterward,  when  a  suit  for  "  breach  of  contract "  was 
served  upon  him,  claiming  damages  to  the  amount  of  '$5,000 
for  a  broken  arm.     On  the  part  of  the  plaintiff,  five  physi- 


80  CIVIL   MALPRACTICE. 

cians,  neitlier  of  whom  appears  to  have  been  members  of  the 
State  Medical  Society,  testified  positively  that  the  radius 
was  broken  at  its  neck,  producing  a  bony  protuberance ;  that 
such  an  injury  only  could  account  for  the  symptoms  mani- 
fested at  the  time  of  the  accident,  and  that  no  other  fractures 
or  injuries  of  the  joint  could  explain  so  well  the  present  ap- 
pearance of  the  arm.  For  the  defence  six  of  the  most  in- 
telligent medical  gentlemen  of  the  State  testified  that  the 
head  and  neck  of  the  radius  were  not  displaced,  nor  was 
there  any  evidence  that  this  bone  had  ever  been  broken. 

Verdict  for  defendant. 


Haskell  v.  Ceoss.^ 

(S.  C.  Salem,  Mass.) 

"  The  plaintiff,  Haskell,  broke  her  wrist  in  July,  1870. 
Following  the  treatment,  considerable  pain  was  experienced 
in  the  hand  and  fingers,  which  plaintiff  attributed  to  unskil- 
ful surgery  on  the  part  of  the  defendant. 

Dr.  Cross  testified,  that  two  splints  were  put  on  with  only 
the  customary  tightness  ;  that  these  were  frequently  loosened 
by  partially  unrolling  and  replacing  the  bandage  (all  of 
which  was  confirmed  by  the  testimony  of  a  neighbor  woman 
who  was  present  at  the  setting  of  the  limb)  ;  that  he  had 
made  sixteen  visits  in  the  treatment  of  the  arm  ;  that  the 
pain  complained  of  was  not  greater  than  might  have  been 
expected  under  the  circumstances,  the  patient  being  seventy- 
five  years  old,  of  a  rheumatic  family,  and  herself  subject  to 
rheumatism  all  her  lifetime  ;  that  he  had  been  frequently 
called  to  attend  her  for  rheumatic  difiiculties,  and  that  both 
hands  had  frequently  suffered  from  rheumatism.  (This  was 
also  corroborated  by  several  witnesses.) 

The  entire  Haskell  family  testified,  that  but  one  splint 
was  put  on,  and  that  bandaged  with  cruel  tightness,  and  that 
the  bandage  was  not  loosened  for  a  fortnight. 

1  Medical  and  Surgical  Reporter,  May  24,  1873. 


FRACTURES   NEAR   WRIST-JOINT.  81 

The  plaintiff  admitted  having  had  a  good  deal  of  rheuma- 
tism in  the  right  hand  and  wrist,  but  that  she  had  never  had 
any  of  any  account  in  the  left,  the  fractured  wrist. 

E.  P.  Hurd,  31.  i>.,  testified,  that  the  plaintiff,  after  Dr. 
Cross  ceased  his  attendance,  applied  to  him  for  relief  ;  that 
he  found  some  swelling  about  the  hand  and  fingers,  with 
considerable  stiffness  of  the  wrist  and  metacarpal  joints,  but 
not  more  than  the  recency  of  the  fracture  might  warrant,  — 
this  being  about  a  month  after  the  injury;  that  much  pain 
was  complained  of,  for  which  he  prescribed. 

Dr.  Gilman  Pike  treated  the  hand  with  electricity,  testi- 
fied that  Mrs.  Haskell  came  to  him  with  a  '  dead  '  and  '  use- 
less '  hand  ;  that  he  knew  nothing  of  surgery. 

Dr.  Thompson.,  Homoeopath.,  testified,  that  the  injury  was 
an  oblique  fracture  of  the  lower  end  of  the  radius  ;  that  the 
bone  had  never  been  '  set,'  and  that  there  was  shortening  of 
three  eighths  of  an  inch  ;  that  Bond's  splint  would  have 
given  a  better  result. 

This  closed  the  '  expert '  testimony  on  the  part  of  the 
plaintiff.  The  defendant  brought  forward  as  expert  wit- 
ness, besides  Dr.  Hurd,  Dr.  Hodges  of  the  Massachusetts 
General  Hospital,  and  Drs.  Pearson  and  Perkins  of  Salem. 

These  gentlemen  all  made  a  patient  and  thorough  ex- 
amination of  the  plaintiff's  arm  and  hand  in  the  presence  of 
the  jury.  They  were  unanimous  in  pronouncing  the  wrist 
and  hand  all  right,  and  the  results  of  the  surgical  treatment 
by  Dr.  Cross  excellent.  All  of  them  affirmed  that  they 
could  not  find  where  the  bone  was  broken,  and  only  one  of 
them  testified  that  he  should  have  known  that  there  had 
been  a  fracture.  They  all  declared  that  the  amount  of  pain 
was  no  greater  than  could  have  been  expected,  considering 
the  advanced  age  of  the  plaintiff  and  her  rheumatic  habit, 
and  that  the  bandaging  at  the  time  of  the  fracture  was  not 
the  cause  of  that  pain. 

The  case  being  given  to  the  jury,  they  returned  a  verdict 
for  $300  and  costs  for  the  plaintiff." 

Notwithstanding  the  exhibition  of  the  utmost  care  in  the 


82  CIVIL  MALPRACTICE. 

treatment  of  fractures  in  the  lower  third  of  the  fore-arm, 
there  is  always  more  or  less  stiffening  of  the  wrist  and 
fingers,  a  result  due  almost,  if  not  entirely,  to  fibrinous  ex- 
udations into  and  around  the  sheaths  of  the  tendons,  and  to 
the  adhesions  which  necessarily  follow  this  fibrinous  exuda- 
tion, where  the  parts  are  kept  at  rest  for  a  long  time. 

In  rheumatic  patients  this  is  notably  the  case.  Here  the 
tendons  and  ligamentous  tissues  near  the  seat  of  the  fracture 
almost  necessarily  become  implicated  in  the  inflammatory 
changes  which  occur  during  the  process  of  repair.  Such, 
doubtless,  was  the  case  in  Haskell  v.  Cross.  It  occurs  to  all 
surgeons  to  see  numerous  cases  of  this  kind. 

That  anchylosis  in  the  wrist  may  not  be  the  result  of  an 
extension  of  the  inflammation  into  the  joint,  surgeons  are 
not  prepared  to  deny  ;  but  as  Professor  Hamilton  has  re- 
marked, "  The  fingers  are  quite  as  often  thus  anchylosed  as 
the  wrist- joint  itself,  a  circumstance  which  is  quite  inexplica- 
ble on  the  doctrine  that  the  anchylosis  is  due  to  an  inflam- 
mation in  the  joints."     (Report  on  Deformities.) 

It  will  be  observed,  upon  a  little  reflection,  that  as  the 
outer  edge  of  the  lower  end  of  the  radius  is  tilted  up,  the 
hand  and  wrist  have  a  radial  inclination,  so  that  the  bones 
of  the  wrist  preserve  their  relations  to  the  radius,  precisely 
as  before  the  fracture.  So  that  it  seems  highly  improbable 
that  any  portion  of  the  anchylosis  can  depend  upon  malposi- 
tion of  the  articulating  surfaces.  But  although  the  articu- 
lating surfaces  retain  their  relative  position,  inflammation,  I 
conceive,  may  extend  into  the  joint,  and  so  result  in  injury ; 
but  over  this,  as  over  the  inflammation  in  the  sheaths  of  the 
tendons,  in  rheumatic  cases,  the  surgeon  has  but  little,  if  any 
control,  and  should  not  therefore  be  held  responsible. 

In  respect  to  the  deformity  that  follows  fractures  in  the 
lower  third.  Dr.  Mott,  of  New  York,  bears  testimony  as 
follows :  — 

"  Fractures  of  the  radius  within  two  inches  of  the  wrist, 
where  treated  by  the  most  eminent  surgeons,  are  of  very 
difficult  management  so  as  to  avoid  all  deformity ;  indeed, 


FRACTURES  NEAR  WRIST-JOINT.  83 

more  or  less  deformity  may  occur  under  the  treatment  of  the 
most  eminent  surgeons,  and  more  or  less  imperfection  in  the 
motion  of  the  wrist  or  radius  is  very  apt  to  follow  for  a 
longer  or  shorter  time.  Even  when  the  fracture  is  well 
cured,  an  anterior  prominence  at  the  wrist  or  near  it  will 
sometimes  result  from  swelling  of  the  soft  parts." 

Dr.  Hamilton  (Deformities  after  Fractures)  bears  simi- 
lar testimony.  He  says  further  :  "  This  swelling  continues 
much  longer  in  old  and  feeble  persons  than  in  the  young  and 
vigorous.  It  is  pretty  generally  proportioned  to  the  amount 
of  anchylosis  existing  at  the  wrist  and  finger- joints,  and  it 
disappears  usually,  pari  passu,  with  these  conditions.  There 
can  be  no  doubt  that  this  phenomenon  is  due  to  an  effusion, 
first  serous  and  subsequently  fibrinous,  along  the  sheaths  of 
the  tendons  ;  and  it  is  equally  present  after  sprains  and 
other  severe  injuries  about  this  part,  as  in  fractures.  In 
many  cases,  however,  its  prolonged  continuance  and  its  firm- 
ness have  led  to  a  suspicion  that  the  bones  were  displaced,  a 
suspicion  which  only  a  moderate  degree  of  care  in  the  ex- 
amination ought  easily  to  dispel. 

A  similar  effusion,  but  in  less  amount,  is  frequently  seen 
also  on  the  back  of  the  hand  below  the  annular  ligament. 
When  both  exist  simultaneously,  the  appearance  of  deform- 
ity and  of  displacement  are  greatly  increased.'* 

At  Professor  Agnew's  (Clinic,  Oct.  25,  1871)  there  was  a 
case  of  anchylosis  of  the  wrist  and  fingers,  following  a  Col- 
ics' fracture,  which  had  occurred  about  eight  weeks  before. 
Perfect  union  had  taken  place,  with,  however,  some  de- 
formity. 

In  his  clinical  remarks  he  said  :  "  Difiiculty  of  motion  in 
the  neighboring  joints  was  a  very  common  sequel  of  this 
fracture,  and  even  under  the  most  careful  treatment,  was 
found  to  exist  in  a  majority  of  cases.  He  thought  it  due 
not  so  much  to  injury  to  the  joint  itself,  as  to  adhesions  of 
the  tendons  over  the  seat  of  fracture,  by  which  their  play 
was  restricted." 


84  CIVIL  MALPKACTICE. 


VoLMTJTH  V.  Hathaway.  ^ 


(Mass.  S.  J.  Court,  Nov.  Term,  1856.) 

Action  of  tort  for  alleged  malpractice  in  treatment  of 
fracture  of  the  bones  of  fore-arm.     Ad  damnum,  110,000. 

ABSTRACT   OF   TESTIMONY. — FOE   PLAINTIFF. 

Vblmuth,  plaintiff :     "  Was    exercising    and    fell.      Put 
hands  behind  back  and  fell  on  them.     Dr.  Hathaway  came 
first.     Dr.    Kelly  came   when    arm  was   set.     Dr.   H.   came 
in  twenty-five    minutes  or  half    an  hour,  after  bones  were 
broken.     Not  swollen  then.     He  set  arm,  put  it  in  a  sling, 
and  took  me  to  boarding-house  and  put  me  in  bed.     They 
pulled  on  my   arm,  and  Dr.   H.  put  on   two   boards,  shin- 
gles,  one  and  a  half   inches   wide,  from   elbow  to  ends   of 
fingers.     Thumb   was  all  squeezed  in  —  shingle  went    over 
thumb.     In  eight  weeks  or  so,  thumb  all  dried  up  and  skin 
loose.     Doctor  cut  off  dry  skin.     Cut  off  skin  at  his  office. 
He  put  cloth  between  wood  and  thumb.     After  nine  weeks, 
he  cut  off  end  of  one  board,  it  hurt  me  so  much.     At  first 
dressing,  the  bandage  was  as  tight  as  he  could  put  it  on. 
Hand  swelled  to  ends  of  fingers.     Fingers  twice  as  thick  as 
usual.'     I    suffered    pain  —  not   much  —  in    fingers,    as   too 
tight.     First  felt  pain  in  fingers  on  second  day.     Began  to 
swell  first  day.     On  second  night  so  much  pain  in  fingers  I 
could  n't  stand  it.     I  told  doctor,  and  he  said  it  made   no 
odds  —  it    was    nothing  —  would    be    over   in    a   few   days. 
Doctor  came  first,  second,  and  third  day,  then  told  me  to  get 
up.     Then  he  opened  arm,  took  everything  off,  and  looked 
at  it,  felt  of  it,  and  put  on  bandage,  &c.,  as  before.     Gave 
me  no  particular  directions.     On  fifth  day  opened    arm  as 
before,  and  examined  it.     Opened  arm  six  or  seven  times  in 
first  two  weeks.     Then  I  began  to  go  to  his  office.     I  asked 
if  I  could  go  to  his  office,  as  it  would  cost  less.     He  said 
'  all  right.'     Went  to  office  three  times  a  week  for  a  while. 
1  Boston  Medical  and  Surgical  Journal,  February  5,  1857. 


FRACTUEES  NEAR  WRIST-JOINT.  85 

Arm  opened  first  time.  Some  weeks  he  opened  it  twice  a 
week.  Said  it  '  would  get  along  well  by  and  by.'  He  al- 
ways felt  of  it  and  examined  it.  Arm  was  cracked  for  seven 
or  eight  weeks  after  broken.  Told  me,  as  often  as  I  came  to 
ofl&ce,  to  eat  as  much  meat  as  I  could,  and  arm  would  unite. 
He  said  I  didn't  eat  meat  enough.  Treated  me  twelve 
weeks,  about.  When  last  at  office  told  me  to  go  to  work, 
for  a  week,  or  fortnight,  or  month,  and  then,  if  not  better,  to 
call  again  at  office.  He  would  then  take  out  the  splinter,  as 
there  must  be  a  splinter  there,  and  arm  would  unite  better. 
Said  nothing  else.  Went  home  and  told  friends,  and  all  said 
best  I  could  do  was  to  go  to  Dr.  Roesler.  When  last  at 
office  could  not  move  fingers,  were  all  stiff ;  could  only  bend 
them  a  little.  There  were  some  small  blisters  on  back  of 
hand.  That  was  all.  Could  not  raise  arm  to  head.  Could 
not  turn  arm  then  as  much  as  now.  When  I  went  to  New 
York  could  only  bend  fingers  a  little,  except  with  other 
fingers.  Flesh  was  all  gone  on  arm.  Arm  wasted  to  half 
size.  Was  skin  and  bone.  Had  been  so  ever  since  Dr.  H. 
had  treated  arm.  Was  so  about  two  weeks  after  treatment 
began.  Arm  tied  so  tight,  became  all  blue.  Showed  Dr. 
Roesler  my  arm.  Stayed  with  him  three  months.  Had  been 
in  New  York  twelve  or  fourteen  days  when  he  performed 
operation.  Dr.  Fischer,  Dr.  Katzenmeyer,  and  some  others 
present.  On  return  from  New  York,  stayed  about  a  week 
in  Worcester,  then  came  to  Boston.  Did  no  work  after  ac- 
cident. Used  arm  for  no  purpose.  Both  shingles  were  on 
nine  weeks  —  then  one  only.  When  last  at  doctor's  office 
had  starch  bandage  on.  He  removed  the  starch  bandage  one 
week  after  put  it  on,  cut  it  open  and  felt  arm,  and  slipped  it 
on  again.  Skin  went  all  off  back  of  hand  about  four  weeks 
after  accident.  Had  arm  in  sling  twelve  weeks.  No  one 
else  touched  it.  I  followed  doctor's  directions.  My  Society 
thought  it  best  to  have  watchers.  Hand  was  swollen  for  nine 
or  ten  weeks  after  breaking.  About  two  weeks  after  it, 
doctor  gave  me  medicine.  No  dressing  ever  put  on  ;  but 
doctor  put  on  shingles,  splinters,  and  drew  a  blister  where 


86  CIVIL  IVIALPPvACTICE. 

arm  was  broken.  This  blister  was  after  eight  or  nine  weeks. 
Kept  on  two  days.  Doctor  gave  no  reason  for  it.  When  he 
took  off  blister,  he  cut  the  places  with  scissors  and  let  out 
water.  After  return  from  New  York,  saw  Dr.  H.  in  Worces- 
ter. He  asked  me  how  arm  was.  I  said  not  much  better, 
and  he  asked  to  look  at  it.  He  asked  what  the  cut  in  the 
arm  was.  Told  him  doctors  in  New  York  operated  on  it. 
He  said,  '  Did  n't  I  tell  you  to  call  at  my  office,  if  your  arm 
was  no  better  ?  I  could  have  cut  on  it  as  well  as  those  doc- 
tors in  New  York.'  He  said  he  was  sorry  for  the  accident. 
I  was  very  healthy  before  the  accident. 

Cross-examined.  Belong  to  Turnverein  Society.  Can't 
tell  at  what  end  doctor  began  to  wind  bandage.  He  cut 
end  off  splinter  to  ease  thumb,  eight  or  nine  weeks  after  ac- 
cident. Never  paid  doctor  anything  for  services.  He  did 
not  send  me  bill.  Doctor  put  no  liniment  or  salve  on  arm. 
He  gave  me  some  bark  after  about  two  weeks.  Friends  sat 
up  ten  nights  with  me.  1  only  drank  once,  on  Fourth  of 
July.  Then  Mayberger  and  me  drank  a  little  beer.  Went 
to  New  York.  Friends  said  Dr.  Roesler  was  the  best  doctor 
—  they  knew  him  in  the  old  country.  Boarded  and  lodged 
with  him  three  months.  No  other  patients  did  so.  In  bed 
four  weeks  ;  three  months  before  went  out  of  house.  Dr.  R. 
said  it  was  a  poor  looking  ai^m,  and  was  not  set.  He  called 
other  doctors,  and  all  agreed  on  operation.     No  one  advised 

me  to  bring  this  suit At  last  visit  doctor  told  me  to 

do  light  work.     Never  tried  to  lift  with  my  hand. 

Br.  Roesler:  Physician  for  seventeen  years  at  Wirtem- 
berg,  and  then  for  four  years  at  New  York.  First  saw  plain- 
tiff in  September,  1855,  at  my  office.  Investigated  injury. 
Saw  no  external  wound.  The  skin  was  kind  of  peeled  away, 
but  there  was  no  regular  wound.  There  was  a  gangrenous 
ulceration  about  lower  part  of  thumb.  Skin  of  back  of  hand 
between  fingers  had  a  gangrenous  appearance.  The  radius 
was  separated.  The  ulna  was  as  if  broken  and  cured  again, 
but  was  not  in  regular  shape,  and  as  it  ought  to  be.  He 
could  not  move  his  thumb  and  fingers,  but  I  could.     The 


FRACTURES   NEAR   WRIST-JOINT.  87 

first  thing  was  to  heal  the  gangrenous  ulcerations.  Then 
the  first  thing  was  an  operation,  as  it  was  impossible  to  re- 
place the  arm  ;  it  was  too  late.  Made  the  operation  seven, 
eight,  or  ten  days  after  I  saw  him.  Operation  was  a  re-sec- 
tion. Three  surgeons  present.  It  was  necessary  to  cut  off 
two  ends  and  set  them  together  again,  as  they  were  sick.  I 
have  the  pieces  cut  off.  (Two  pieces  of  bone,  of  a  dark  color, 
between  an  inch  and  a  half  inch  in  length,  were  here  pro- 
duced ;  one  quite  conical,  with  the  apex  well  rounded,  the 
other  also  conical,  with  a  pointed  apex,  but  on  one  side  pre- 
senting a  rough,  jagged  surface,  as  if  an  irregular  fragment 
had  been  broken  off.)  If  we  had  not  cut  these  off,  the  arm 
would  never  have  healed  again.  One  was  beginning  to  be 
attacked  by  caries^  and  if  that  has  taken  place,  arm  never 
can  be  joined  together  again.  Pieces  of  bone  look  now  of 
same  color  as  when  taken  out.  At  incision,  courses  of  fistules 
were  found  next  the  bone,  which  the  surgeon  must  take  out. 
They  were  destroyed.  After  operation,  put  on  bandage  to 
keep  parts  in  regular  form  and  position.  The  bone  (radius) 
was  united  before  he  left  New  York.  He  had  a  fever  and 
was  very  sick,  and  we  gave  him  medicine.  When  he  came 
to  me  the  ulna  was  twisted.  There  was  a  want  of  rotary 
motion  in  the  radius,  because  it  had  not  been  united.  The 
want  of  it  now  is  because  the  soft  parts  were  destroyed  near 
the  broken  part,  and  because  of  the  fistules.  Fistules  were 
occasioned  by  bones  not  uniting,  then  when  bones  ulcerate, 
the  fistules  appear.  If  bandage  too  tight,  circulation  be- 
comes impossible  and  ulcers  come  forth.  If  pieces  of  bone 
had  not  been  cut  off,  the  result  would  have  been  that  the 
caries  would  have  increased,  and  amputation  become  neces- 
sary. In  case  of  fracture,  bandage  should  be  neither  too 
tight  nor  too  loose,  but  one  which  prevents  all  movement. 
A  little  swelling  of  hand  not  improper.  Hand  will  swell 
without  bandage.  The  two  ends  of  bone  were  found  to  be 
half  an  inch  apart.  The  fracture  was  not  difficult  to  cure,  if 
no  other  circumstances  made  it  difficult.  In  a  healthy  patient 
of  twenty-one  years,  five  or  six  weeks  is  the  ordinary  time 


88  CIVIL  MALPRACTICE. 

for  a  cure.  The  bandage  should  not  be  removed  until  five, 
six,  or  eight  days,  unless  extraordinary  circumstances  require 
it.  Should  not  be  often  removed,  unless  there  is  a  wound,  or 
swelling,  or  pain.  If  both  bones  are  broken,  good  practice 
requires  four  splints.  Plaintiff's  arm  very  much  now  as  when 
he  left  me  —  bones  a  little  stronger.  When  he  came  to  me, 
the  arm  was  of  full  size,  except  broken  part  of  radius,  which 
was  swollen  by  the  bandage,  but  it  was  possible  easily  to  feel 
the  broken  part  through  the  flesh.  In  the  operation  I  was 
assisted  by  Drs.  Fischer,  Katzenmeyer,  and  Schuberg. 

Cross-examined.  Keep  an  apothecary  shop  in  New  York, 
Canal  St.,  corner  of  Allen  St.  Advertise  only  when  I 
change  my  residence.  Not  a  member  of  New  York  State 
Medical  Society.  Am  only  a  member  of  a  German  Medical 
Society.  Practise  entirely  among  Germans.  Perform  a 
great  many  operations  —  few  do  as  many  as  I  do.  Do  not 
know  what  previous  treatment  of  arm  was.  It  was  in  a 
miserable  condition  when  it  came  to  me.  There  was  inflam- 
mation, which  began  to  be  gangrenous  on  lower  part  of  arm 
and  fingers.  Arm  somewhat  swollen.  Could  not  see  fract- 
ure from  outside.  After  bone  is  cut  off,  the  blood  in  it 
grows  darker.  I  use  four  splints  for  fractures.  The  opera- 
tion has  shortened  the  arm  three  fourths  of  an  inch.  When 
he  came,  there  was  no  opening  in  the  arm.  Gave  him  medi- 
cine for  the  fever  which  followed  operation,  —  quinine,  phos- 
phoric acid,  and  cinchona.  Gave  cooling  medicine  during 
fever  ;  when  fever  declined,  and  he  was  weak,  gave  strength- 
ening medicines.  After  first  week  of  fever,  applied  warm 
chamomile  poultice,  and  put  salves  on  wound.  He  was  so 
sick  he  remained  in  bed  four  weeks ;  then  I  let  him  go  about 
the  room.  He  was  two  months  in  one  room.  The  third 
month  he  went  out  into  the  open  air.  Have  not  been  paid  for 
the  operation  and  nursing,  but  the  Turnverein  Society  paid 
his  board.  While  I  had  a  hospital,  I  had  boarders  ;  only  took 
plaintiff  to  board,  because  very  interesting  case.  By  gan- 
grene I  mean  destruction  and  festering  of  the  soft  parts, 
where  the  upper  part  is  sick,  and  separates  from  the  lower. 


FEACTURES  NEAR  WRIST-JOINT.  89 

'  Brandig '  is  the  German  word  for  gangrene.  Soreness  of 
the  thumb  was  probably  occasioned  by  too  strong  bandaging. 
Might  be  caused  by  splint  pressing  against  it.  I  made  only 
one  cut.  Found  only  one  breaking  of  radius.  Nothing  ma- 
terially wrong  in  ulna ;  direction  a  little  wrong.  After  an 
operation  of  cutting  off  bone,  arm  always  deformed.  Radius 
and  ulna  can  always  be  kept  from  coming  together  by  a 
bandage.  Arm  cannot  be  better  than  it  is  now.  He  can  pro- 
nate  but  not  supinate.  This  is  because  the  radius  is  shorter 
and  callus  has  thickened ;  and  because  ulna  not  in  right 
direction  and  bent  a  little.  In  similar  cases  of  cut  bone, 
patient  cannot  supinate.  I  never  performed  this  operation 
before.  The  operation  resulted  better  than  I  anticipated, 
though  full  strength  will  never  come  back  to  fingers.  Am 
not  disappointed  with  result.  Plaintiff  was  in  danger  of  his 
life  about  six  days  after  operation.  Continued  so  about  a 
day  and  a  half.  Was  twice  out  of  his  mind  —  a  full  night 
and  a  day.  Friends  inquired  about  him  every  day.  Had  a 
very  high  fever ;  was  quiet  and  very  weak.  At  place  of 
cut,  common  festering  came  out.  At  time  of  operation, 
plaintiff  was  a  'healthy  patient,'  so  called.  Pasteboard  is 
better  for  splints  than  wood.  Where  both  bones  are  broken 
once,  and  ulna  unites  in  usual  time,  and  radius  not,  it  is  an 
extraordinary  case.  Have  kept  tables  of  my  operations. 
Ulna  and  radius  generally  unite  together  —  do  not  differ  in 
time  of  union  by  a  week.  Do  not  know  a  single  case  where 
radius  has  not  united,  when  bones  are  rightly  put  together. 
Will  unite  in  five  to  seven  weeks.  Longest  time  I  have 
known  in  effecting  union,  in  properly  set  radius,  is  seven  to 
eight  weeks.  Determined  on  an  operation  the  first  day  I  saw 
him.  He  told  me  his  physician  had  dismissed  him  to  go  to 
work.  I  understood  it  as  a  dismission.  I  did  not  communi- 
cate with  defendant  relative  to  the  case.  Object  of  cutting 
is  to  find  new  and  healthy  bone,  with  vitality.  If  there  is 
caries  in  fractured  bone,  an  operation  is  necessary  beyond  a 
doubt.  This  was  a  case  of  simple  fracture  of  radius.  Have 
had  not  less  than  twenty  cases  of  simple  fracture  of  both 


90  CIVIL  MALPRACTICE. 

bones  of  fore-arm.  I  do  generally  correspond  with  the  prior 
surgeon,  but  did  not  in  this  case,  for  reasons  I  prefer  not  to 
mention.  The  muscles  which  move  the  thumb  were  affected 
or  destroyed  by  ulceration.  No  sound  muscle  was  cut  by 
me.  I  only  cut  out  the  sick  parts  of  upper  muscle.  I  used 
a  chain  saw.  Gangrenous  ulceration  took  place  because  the 
nourishment  of  hand  and  thumb  had  suffered,  and  the  press- 
ure on  the  thumb  was  so  great  that  festering  or  ulceration 
took  place,  and  scars  were  formed,  and  the  muscles  became 

weak Extensor  of  thumb  was  pierced  through  with 

fistules.  I  did  not  cut  it.  Before  I  cut  there  was  no  possi- 
bility of  movement  in  the  thumb,  but  there  was  movement 
afterwards.  None  before,  because  the  nourishment  of  the 
lower  arm  had  ceased.  Present  partial  motion  of  extensor 
is  owing  to  present  soundness  of  muscles  which  were  sick 
before.  Sick  before,  because  the  joining  of  the  fixing  of  the 
muscles  was  not  in  order  before.  Knew  this,  because  both 
ends  of  bone  could  be  felt  easily  through  flesh,  which  led  to 
conclusion  that  there  was  festering  in  the  part  of  the  muscle 
which  moves  the  thumb. 

Br.  Katzenmeyer :  Was  educated  at  Munich  ;  afterwards 
assistant  physician  at  Heidelberg.  Have  practised  two  years 
here  and  one  in  Europe.  Was  present  at  operation.  Ex- 
ternal .  appearance  of  arm  atrophous  —  place  of  fracture 
slightly  inflamed.  Hand  stiff  and  swollen,  with  traces  of 
gangrenous  blisters.  Found  one  fracture  of  radius  and  ulna 
united  by  callus  —  not  united  in  direction  of  axis.  From 
external  appearance,  came  to  conclusion  that  bone  was 
not  rightly  set,  and  that  the  ends  of  bone  were  carious. 
Concluded  there  was  caries  from  the  fluctuation  and  crepita- 
tion. Concluded  there  should  be  a  re-section  or  an  amputa- 
tion of  arm.  I  should  have  proposed  amputation,  but  was 
convinced  by  the  learning  and  experience  of  Dr.  Roesler 
that  the  cutting  off  the  ends  should  first  be  tried.  Assisted 
at  operation.  Bone  was  laid  open,  and  saw  put  to  sick  ends. 
After  removing  ends  of  bone,  wound  was  drawn  together, 
and  left  open  in  the  middle  to  allow  of  the  efflux  of  fistula. 


FRACTURES   NEAR   WRIST-JOINT.  91 

Muscle  of  arm  and  ends  of  bone  attacked  by  festering.  No 
muscle  i-emoved  from  arm.  Dr.  R.  took  out  about  a  spoon- 
ful of  festering  matter.  After  operation  there  was  efflux  of 
matter  for  several  days.  Saw  plaintiff  almost  daily  after 
operation.  After  operation,  arm  bound  up  with  splints,  and 
dressed,  beginning  from  elbow.  To  prevent  ulna  and  radius 
coming  together,  graduated  compresses  used.  Arm  placed 
in  slino;.  Broken  ends  could  not  have  been  united  without 
re-section.  Could  not  have  been  a  ligamentous  union  be- 
tween ends.  Impaired  motion  of  thumb  owing  to  weakening 
of  muscles  by  festering.  Fracture  of  radius  simple.  Simple 
fractures  of  fore-arm  are  easy  to  be  known  and  treated. 
When  plaintiff  came  to  New  York,  not  possible  for  him  to 
attempt  to  labor.  Arm  not  previously  treated  with  care. 
In  my  opinion,  radius  never  rightly  set,  for  ulna  not  in  right 
direction.  As  fracture  was  simple,  could  not  but  have  been 
easily  cured  with  proper  treatment  —  therefore^  I  think  it 
was  not  well  treated.  I  ascribe  the  gangrenous  appearance 
to  tightness  of  .bandage.  Before  operation,  no  motion  of 
thumb.  Present  imperfect  motion  owing  to  shrinking  and 
growing  together  of  muscles.  No  part  was  cut  or  divided  in 
the  operation.  Atrophous  state  of  arm  owing  to  too  tight 
bandaging,  which  hinders  circulation.  Arm  will  never  be 
restored  to  full  use. 

Cross-examined.  Am  physician,  accoucheur,  and  surgeon 
—  office  in  Second  Avenue,  in  New  York.  Do  not  sell  med- 
icines. Not  a  member  of  New  York  State  Medical  Society  — 
belong  to  a  German  Medical  Society.  Have  performed  such 
an  operation  once,  seen  it  several  times.  I  use  four  splints 
for  simple  fracture  of  fore-arm  —  splints  of  paste-board  or 
gutta  percha.  Splints  to  be  placed  on  four  sides  of  arm. 
Greater  safety  in  four  splints.  Not  a  partner  of  Roesler ; 
called  at  his  house  almost  every  day,  because  intimate  with 
him.  After  operation,  bandages,  &c.,  removed  ten  times  in 
three  months.  First  removed  in  six  weeks  after  operation. 
Took  away  portion  of  bandage  every  day  to  clear  arm.  At 
operation   three  splints  were   used,  with   a   fourth   divided 


92  CIVIL  MALPRACTICE. 

across.  The  gangrene  or  festering  on  plaintiff's  thumb  and 
fingers,  when  I  first  saw  him,  was  of  dark  color,  and  went 
through  flesh  to  muscles.  Dr.  R.  cured  this,  before  opera- 
tion, by  external  treatment  only.  Whole  arm  atrophous, 
caused  by  too  tight  bandaging.  One  of  the  fragments  of  bone 
was  carious,  the  other  resorbed.  I  should  certainly  have 
amputated  on  strength  of  external  appearance  of  arm  ;  be- 
cause of  atrophous  condition  of  arm,  because  I  knew  there  was 
caries,  and  because  I  knew  there  was  formation  of  matter,  or 
festering,  in  arm.  All  the  bone  that  was  affected  with  caries 
was  cut  off.  Usual  in  surgery  to  amputate  or  re-sect  for 
caries.  Resorption  shows  bad  putting  together  of  bones.  In 
case  of  caries  in  hip,  would  re-sect,  under  most  favorable 
circumstances.  The  German  word  for  fistula  is  eiterung. 
Operation  of  re-section  does  not  of  itself  produce  bad  effects 
on  muscles. 

defendant's  testimony. 

John  E.  Hathaway^  M.  D. :  Am  twenty-nine  years  of  age. 
Have  been  in  practice  four  and  a  half  years.  Was  student  at 
Medical  College  in  Boston,  four  years  as  house-apothecary 
at  Massachusetts  General  Hospital,  and  six  months  as  house- 
physician.  Paid  particular  attention  to  surgery,  and  saw 
nearly. all  the  operations  while  at  the  Hospital.  Have  been 
city  physician  in  Worcester.  On  30th  of  June,  1855,  was 
called  to  plaintiff.  On  examination,  found  ulna  broken  once 
about  the  middle  transversely,  and  radius  broken  in  two 
places,  at  both  obliquely  ;  once  nearly  opposite  fracture  of 
ulna,  and  again  rather  more  than  an  inch  below.  Found  a 
wound  in  arm  whence  blood  was  issuing,  evidently  made  by 
end  of  bone  protruding  through.  Cleansed  blood  from  arm 
and  stopped  bleeding.  Placed  lint  on  wound,  and  put  adhe- 
sive plaster  upon  it,  to  retain  it  in  place,  and  to  shut  out  ex- 
ternal air.  Padded  splints  and  arranged  bandages,  reduced 
bones  by  extension  and  counter-extension  with  assistance  of 
by-standers,  kneading  bones  into  position  with  hand.  Placed 
one  splint  on  back  of  arm  from  elbow  to  tips  of  fingers ; 


FRACTURES   NEAR   WRIST-JOINT.  93 

the  other  on  front,  from  bend  of  elbow  to  middle  of  palm. 
Before  applying  lint,  however,  put  finger  into  wound  and 
took  out  two  or  three  fragments  or  splinters  of  bone.  While 
adjusting  apparatus,  Dr.  Kelly  came  in.  Seeing  that  by- 
standers appeared  to  recognize  him,  thought  he  might  be 
their  physician,  so  offered  to  give  up  case  to  him.  He  de- 
clined, but  kindly  offered  to  assist  me.  Took  off  splints, 
and  let  Dr.  K.  examine  arm,  and  re-applied  splints  as  before. 
Dr.  K.  and  I  got  the  bones  into  what  we  thought  excellent 
position.  Then  applied  roller  bandage  from  fingers  up  to, 
and  above,  elbow.  Bent  arm  (back  splint  having  joint  at 
elbow),  placed  it  in  sling,  and  suspended  from  neck.  Placed 
plaintiff  in  my  chaise  and  took  him  to  his  boarding-house. 
There  had  him  undressed  and  put  to  bed.  Took  off  sling 
and  rested  his  arm  on  a  pillow,  in  an  easy  position.  Ex- 
pressed himself  easy  and  free  from  pain.  Left  him,  with 
directions  to  keep  quiet  and  avoid  all  stimulants.  Told  him, 
if  arm  felt  hot  and  uncomfortable,  he  might  apply  cold 
lotions  to  ease  it.  Called  next  morning,  found  him  sitting 
up  ;  had  been  free  from  pain,  but  had  applied  cold  water  to 
arm  in  the  night,  to  make  it  feel  easier.  Saw  beer  mvigs  all 
about  room,  with  beer  in  some  of  them  ;  also,  on  table  near 
bed,  a  tumbler  containing,  apparently,  port-wine  sangaree. 
Reminded  him  of  my  directions  to  abstain  from  stimu- 
lants, and  told  him  it  was  n-ot  safe  to  venture  in  that.  way. 
He  said  he  had  not  drunk  much.  Examined  arm,  though 
not  removing  dressings.  No  swelling,  such  as  often  takes 
place  ;  fingers  not  swollen.  Think  I  called  again  at  night. 
Called  next  day,  and  next.  Secured  bandage  with  pins. 
On  third  day  removed  apparatus.  Wound  was  healing  by 
granulation  ;  washed  arm  and  redressed  wound  ;  some  slight 
oozing  of  matter  from  wound,  with  slight  odor.  Visited 
patient  about  once  every  day  and  a  half  for  ten  or  fourteen 
days  ;  then  three  or  four  times  a  week.  On  sixth  day,  re- 
moved apparatus  to  dress  wound.  Found  it  nearly  healed  ; 
closed  but  not  cicatrized  ;  replaced  splints,  &c.  After  third 
or  fourth  week,  patient  visited  me  at  my  office.     Up  to  this 


94  CIVIL  MALPEACTICE. 

time,  arm  doing  very  well.  No  particular  action,  however, 
and  I  feared  high  fever,  but  there  was  not  so  much  of  this  as 
I  expected.  By  third  week,  fracture  of  radius  had  become 
simple,  by  healing  of  wound.  Union,  in  ordinary  cases, 
takes  place  in  four  to  five  and  a  half  weeks.  At  end  of  five 
weeks,  began  to  be  anxious  for  union  in  ulna.  Conferred 
with  Dr.  Gage  and  other  surgeons  about  case.  At  end  of 
four  and  a  half  or  five  weeks,  found  ulna  firmly  held  together, 
and  in  six  or  six  and  a  half  weeks  there  was  union.  Of 
course  it  had  not  yet  become  solid  bone,  but  such  that  splint 
could  be  moved  in  a  week.  Showed  arm  to  Dr.  Gage,  asked 
him  to  examine  it.  Made  patient  hold  up  arm,  and  we 
looked  across  it.  Arm  in  excellent  shape.  So  little  distor- 
tion in  any  part,  that  one  could  not  tell,  by  sight,  where 
fracture  had  been.  Could  find  seat  of  fracture  by  feeling. 
After  this  conference,  appointed  early  day  for  patient  to 
come  again.  Then  applied  starch  bandage.  Patient  called 
three  or  four  days  after.  Cut  up  bandage  in  usual  way,  and 
took  out  the  limb.  Applied  a  stimulating  liniment  to  arm  ; 
tincture  of  camphor,  soap,  and  volatile  oil,  with  a  little  cap- 
sicum. Also  used  friction.  Repeated  use  of  liniment  with 
friction,  for  three  or  four  next  visits.  After  eight  or  nine 
weeks,  radius  had  stiffened  a  little  —  at  one  place  rather 
stiff  ;  at  the  other  not  so  much  so.  Had  in  mean  time  given 
him  a  tonic,  to  be  taken  daily,  before  meals,  known  as  '  com- 
pound iron  mixture.'  At  this  time  applied,  over  seat  of 
fracture  of  radius,  to  excite  action,  a  blister.  At  next  visit 
opened  it  and  let  out  matter,  and  told  him  to  exercise  in  the 
open  air,  to  get  appetite,  and  to  eat  meat  and  nourishing 
food.  At  the  end  of  another  week,  found  indications  of  im- 
proved action;  washed  arm,  applied  alcohol,  and  re-adjusted 
starch  case.  At  end  of  about  a  week  patient  came  again. 
This  was  his  last  visit.  Examined  arm,  and  found  ulna  very 
firm.  Found  some  union  of  upper  fracture  of  radius.  His 
health  was  improving.  Told  him  months,  and  even  years 
sometimes,  elapsed  before  perfect  union  in  cases  of  com- 
pound comminuted  fractures  ;  that  he  must  not  be  discour- 


FRACTUKES   NEAR   WRIST-JOINT.  95 

aged  if  he  recovered  slowly.  Told  him  to  flex  his  fingers, 
which  were  stiff  from  long  disuse,  and  to  lift  light  weights, 
and  employ  muscles  of  arm,  in  order  to  improve  action.  If 
he  wanted  an  object,  he  might  do  some  light  work.  Directed 
him  to  come  again  at  end  of  ten  days  or  a  fortnight,  and  let 
me  examine  arm,  and  to  continue  calling,  from  time  to  time, 
till  well.  Informed  him  that,  if  treatment  did  not  result 
favorably,  and  Nature  refused  to  work  a  cure,  there  was  a 
last  resort  in  an  operation.  At  present,  sufficient  time  had 
not  elapsed,  nor  was  his  health  strong  enough  to  bear  it. 
He  assented,  as  if  he  understood  my  views.  I  had,  in  fact, 
taken  pains  from  beginning,  to  explain  my  movements  to 
him,  in  order  that  he  might  cooperate.  As  he  went  out,  he 
asked  how  much  my  bill  was.  I  replied  I  had  not  made  it 
out,  but  would  have  it  ready  for  him  at  next  visit.  He  never 
came  again.  At  this  visit,  which  was  at  end  of  eleventh  or 
twelfth  week,  the  shape  of  arm  was  good ;  fracture  only  to 
be  found  by  feeling  ;  arm  somewhat  reduced  in  bulk,  but  not 
wasted,  and  with  the  atrophous  appearance  which  a  healthy 
arm  would  have,  when  so  long  without  exercise.  Full  mo- 
tion nearly  restored  to  fingers  ;  could  bend  them,  but  not 
quite  shut  them.  I  could  easily  shut  them  myself.  The 
front  splint  had  been  so  wide  that  it  had  pressed  against  ball 
of  thumb.  Had  put  my  director  under  it,  and  cut  out  a 
notch  to  ease  thumb,  and  placed  batting  under  the  end.  A 
little  skin  came  off  from  thumb  where  splint  rubbed.  The 
operation  I  referred  to  was  the  seton  operation.  Had  seen  it 
tried  and  succeed.  Intended  to  perform  it  only  as  a  last  re- 
sort. Bandages,  when  first  applied,  were  not  tight,  but  firm. 
There  was  no  unusual  swelling  of  hand  or  fingers  afterwards  ; 
and  no  complaints  of  pain  from  patient.  Ulna  generally 
unites  sooner  than  radius,  which  has  a  double  motion.  At 
last  interview,  upper  fracture  of  radius  considerably  united, 
which  was  an  encouraging  symptom  for  union  of  lower. 
Should  have  waited  ten  or  twelve  weeks  more  before  using 
seton.  Regulated  his  diet,  because  his  health  was  below  par. 
When  he  left,  there  was  nothing  on  thumb  but  a  little  eschar ; 


96  CIVIL   MALPRACTICE. 

the  skin  had  healed,  but  was  not  white.  Between  fingers, 
skin  had  been  softened  by  perspiration.  iVb  sign  of  gangrene 
anywhere^  as  we  understand  it.  At  last  interview,  no  sign 
of  unhealthy  bone  at  seat  of  fracture,  and  nothing  to  make 
me  apprehend  it.  If  there  had  been  decaying  bone,  there 
would  have  been  swelling  of  the  limb,  accompanied  with 
pain,  and  an  opening  would  have  appeared.  Felt  no  matter 
,at  seat  of  fracture.  Matter  would  not  have  indicated  dead 
bone.  At  last  interview  had  no  idea  patient  was  going  to 
withdraw  himself  from  my  treatment.  Had  heard  no  ex- 
pression of  dissatisfaction  from  himself  or  his  friends.  Some 
time  after,  asked  some  of  the  Germans  why  he  had  not  been 
to  see  me,  and  was  told  he  had  gone  to  New  York.  Saw 
him  a  few  minutes  in  the  street,  in  Worcester,  after  his  re- 
turn. Saw  scar  and  redness  on  his  arm,  which  he  said  were 
made  by  the  operation.  Felt  large  callus.  Asked  him  to 
pronate  and  supinate.  He  could  do  so  but  little.  Expressed 
no  dissatisfaction  with  my  treatment ;  and  I  had  no  idea  of 
any,  till  surprised  by  service  of  the  writ  in  this  case. 

Cross-examined.  Hole  in  integuments  large  enough  for 
little  finger  to  enter.  Did  not  see  the  bone,  —  blood  con- 
stantly discharging.  Took  out  two  or  three  pieces  of  splin- 
tered bone.  Think  these  were  all.  Took  out  all  I  could 
remove  Avith  safety.  Pieces  removed  shaped  somewhat  like 
a  split  pea.  Would  not  have  been  justified  in  removing 
intermediate  fragment  of  radius.  This  was  about  an  inch 
long ;  though  of  unequal  length,  because  obliquely  broken. 
Think  it  could  not  have  been  spHt,  without  knowing  it; 
may  possibly  have  been  cracked.  The  bones  never  got  out 
of  apposition  after  being  once  set.  The  intermediate  frag- 
ment was  sometimes  moved  out  of  place  by  the  contraction 
of  muscles.  Impossible  to  keep  it  exactly  in  place,  as  least 
action  would  disturb  it.  Examined  arm  yesterday.  Found 
a  little  curving  out  of  the  ulna,  which  did  not  exist  when  he 
left  me.  At  that  time  ulna  not  perfectly  firm  and  solid,  as 
the  perfecting  of  solidity  of  bone  is  a  slow  process  ;  could 
probably  have  been  bent  at  that  time.     Did  not  exercise 


FRACTURES   NEAR   WRIST-JOINT.  97 

rotary  movement  of  arm  lest  I  should  disarrange  co-aptation 
of  fragments.  When  I  told  him  he  might  do  light  work,  he 
spoke  of  filing  (at  pistol  shop).  Objected  to  his  filing,  but 
thought  he  might  do  some  such  work  as  holding  pistol  locks 
upon  emery  wheel.  Thought  also  his  employers  might  em- 
ploy him  to  go  errands  ;  as  I  particularly  wished  him  to  be 
in  open  air.  The  starch  case,  being  left  on,  would  prevent 
rotary  motion  and  thoroughly  protect  limb.  In  case  of 
compound  comminuted  fracture,  patient  may  lose  limb,  if 
wanting  in  care.  He  did  not  disobey  my  directions,  to  my 
knowledege,  in  any  way  except  by  using  stimulants  as  before 
mentioned.  Did  not  preserve  splinters  of  bone  taken  out 
by  me. 

Dr.  S.  H.  Kelly :  Am  physician  in  Worcester.  Was 
present  at  setting  of  arm,  &c.,  by  defendant.  When  I  came 
in  he  asked  me  to  examine  arm,  and  removed  dressing  for 
that  purpose.  Found  fracture  of  radius  in  two  places,  both 
obliquely,  —  and  of  ulna  in  one  place,  transversely.  The 
fracture  of  radius  was  compound,  with  a  wound  in  the  in- 
teguments. Assisted  at  dressing.  Made  counter-exten- 
sion, while  defendant  made  extension.  Bandage  not  too 
tight,  certainly,  and  not  too  loose,  but  what  is  called  firm. 
Was  struck  with  skilful  and  neat  way  in  which  everything 
was  adjusted.  Patient  made  no  complaint  of  pain,  and 
appeared  to  feel  easy.  Saw  defendant  drive  off  with  him  in 
a  chaise. 

Cross-examined.  Think  I  put  my  finger  in  wound,  but 
took  out  nothing.  Defendant  showed  me  two  splinters  of 
bone  taken  out  by  him.  Arm  was  not  much  swollen.  In 
majority  of  cases  there  would  be  considerable  swelling  after 
such  an  injury.  Such  swelling  would  have  effect  to  tighten 
bandage. 

Thomas  M.  Crage^  M.  D. :  Am  assistant  phj^sician  at  State 
Lunatic  Hospital,  at  Worcester.  Graduated  at  Medical  Col- 
lege in  Boston,  four  years  ago.  Was  house-surgeon  one 
year  at  Massachusetts  General  Hospital.  Practised  at  Ster- 
ling three  and  a  half  years  before  going  to  Worcester.  Known 
7 


98  CIVIL    MALPRACTICE. 

defendant  since  1849,  when  we  began  to  study  together. 
Arm  was  shown  to  me  by  defendant  at  his  office.  Defendant 
removed  dressing,  and  bared  the  arm,  and  I  examined  it. 
Patient  held  arm  up,  and  I  looked  carefully  across  it.  Made 
the  remark  that  it  was  not  possible  to  detect  the  place  of 
fracture  by  the  eye.  Felt  limb  carefully  with  hands  ;  found 
well-united  fracture  of  ulna,  and  feebly-united  fracture  of 
radius,  which  was  broken  in  two  places.  Found  a  little  cal- 
lus at  fracture  of  radius.  Could  distinctly  feel  intermedi- 
ate fragment.  Traced  radius  with  hand  from  end  to  end, 
and  found  it  in  its  natural  position,  especially  two  larger 
fragments,  the  intermediate  oblique  fragment  being  very 
slightly  out  of  line.  Very  difficult  for  dressings  to  make  im- 
pression upon  it.  Arm  was  in  excellent  and  perfectly  nat- 
ural position,  and  in  very  good  shape.  Somewhat  dimin- 
ished in  bulk,  as  would  be  expected.  No  swelling  at  all 
of  arm  or  hand.  Nothing  out  of  the  way  with  thumb.  Saw 
scar  on  outer  side  of  radius,  as  of  recently-healed  wound. 
Defendant  replaced  apparatus  in  my  presence.  In  addition, 
we  applied  pads  to  keep  the  intermediate  fragment  in  place. 
Do  not  know  which  of  us  suggested  it.  Arm  appeared  as  if 
decidedly  correctly  treated  hitherto.  No  evidence  of  band- 
ages having  been  too  tight.  Good  circulation  in  arm.  Pa- 
tient made  no  complaint.  Ulna  was  as  firm  and  strong  as 
could  have  been  expected  in  four  or  five  weeks.  No  sign  of 
anything  like  gangrene  or  mortification.  Nothing  to  excite 
suspicion  of  there  being  dead  bone. 

Cross-examined.  We  talked  together  about  general  means 
of  improving  patient's  health  —  also  of  starch  bandage.  An 
operation  then  would  have  been  entirely  improper.  Traced 
ulna  down  carefully,  as  I  always  do,  and  found  whole  length 
in  good  position  and  fragments  well  united. 

Winsloiv  Leivis,  M.  D. :  Have  heard  all  the  evidence  in 
this  case.  Defendant's  treatment,  as  described  in  his  testi- 
mony, was  perfectly  correct  in  every  detail.  The  case  was 
a  bad  one,  requiring  unusual  surgical  skill.  All  compound 
fractures  are  more  or  less  difficult.     Air  is  admitted  by  ex- 


FRACTURES  NEAR   WRIST-JOINT.  99 

ternal  wound,  and  wound  itself  requires  separate  treatment. 
Fracture  more  difficult  of  treatment  if  comminuted.  Frag- 
ments are  constantly  working  out  of  apposition,  under  the 
action  of  muscles ;  and  ends  of  bone,  especially  if  obliquely 
broken,  are  apt  to  wound  the  nerves  and  vessels.  Case  also 
more  difficult,  of  coui'se,  if  both  bones  are  broken.  One  can- 
not then  serve  as  a  natural  splint  for  the  other.  The  con- 
traction of  the  pronator  muscles  would  also  embarrass  the 
setting  of  the  bone,  and  would  tend  to  draw  the  fragments 
apart  when  once  in  apposition.  The  process  by  which  union 
is  effected  is  governed  by  no  general  law,  but  depends  upon  a 
variety  of  circumstances.  The  process  consists  of  an  irrita- 
tion of  membranes  at  ends  of  bone,  which  inflame,  and  a  fluid 
called  nature's  glue  is  poured  out,  which  attaches  the  frag- 
ments to  each  other.  This  fluid  hardens,  and  becomes  callus, 
which,  in  time,  gives  place  to  solid  bone.  A  fracture  like  this 
one  would  have  done  well  if  cured  in  seven  or  eight  months. 
Union  sometimes  delayed  a  year  or  more.  Sometimes  takes 
place  with  deformity  or  shortening  of  limb.  Never  heard  of 
using  four  splints,  as  advised  by  German  physicians.  Even 
if  no  union  takes  place,  the  limb  may  be  used  for  certain 
purposes.  An  operation  is  the  last  resort  —  is  always  more 
or  less  dangerous.  Should  advise  seton  operation  to  be  first 
tried,  except  in  case  of  death  of  bone.  Presence  of  dead 
bone  is  indicated  by  inflammation,  excessive  pain,  and  a  dis- 
charge through  an  opening  in  the  integuments.  Dead  bone 
could  not  exist  without  such  an  opening  being  formed. 

Examination  not  completed. 

George  Mayward.,  M.  D.  :  Heard  evidence  of  defendant. 
His  treatment  was  entirely  proper  and  correct.  It  was  just 
such  as  I  should  have  pursued.  Case  was  a  difficult  one 
from  the  nature  of  the  accident,  plaintiff  having  thrown  his 
arm  behind  him  and  fallen  upon  it  with  the  weight  of  his 
body.  Treatment  more  difficult  because  fracture  was  com- 
pound, comminuted,  oblique,  and  of  both  bones.  In  cases  of 
compound  fracture,  external  wound  to  be  healed  first.     Per- 


100  CIVIL  MALPEACTICE. 

manent  bony  union  does  not  generally  take  place  sooner  than 
a  year.  Should  not  have  thought  of  performing  an  opera- 
tion in  this  case  at  the  end  of  twelve  weeks.  Defendant's 
direction  to  patient  to  do  light  work,  &c.,  at  the  end  of  this 
time,  was  good.  Should  have  delayed  performing  an  opera- 
tion in  this  case  till  other  means  failed,  and  Nature  refused 
to  work  a  cure.  If  the  arm  had  come  under  my  care  in  the 
condition  described  by  German  physicians,  I  should  have 
tried  starch  bandage  and  electricity.  Should  not  have  at- 
tempted an  operation.  If  operation  afterwards  became  nec- 
essary, should  have  performed  seton  operation  as  particu- 
larly adapted  to  this  case.  Nothing  in  defendant's  evidence 
to  indicate  dying  of  the  bones.  Dead  bone  always  indi- 
cated by  inflammation  and  opening  in  the  integuments.  The 
pieces  of  bone  of  radius  exhibited  by  the  German  physician 
are  not  decayed.  They  are  perfectly  healthy  in  appearance. 
There  is  nothing  in  their  appearance  to  justify  excision.  No 
caries.  Fragments  also  contain  medullary  substance,  and 
medulla  is  absorbed  when  no  union  is  to  take  place.  Dark 
color  owing  to  drying  of  blood  by  time.  Largest  fragment 
shows  that  a  part  of  it  has  been  united  with  another  part. 
Think  it  must  have  been  cut  off  above  the  union  of  the 
upper  fracture.  (The  witness  called  the  attention  of  the 
jury  to  fragments  of  bone.  He  pointed  out  a  slight  but  dis- 
tinct curve  in  the  larger  fragment  which,  with  other  marks, 
indicated  that  it  had  been  broken  at  the  angle  of  the  curve, 
and  afterwards  united.  The  cutting  had  been  made  above 
this  point.)  If  there  were  pus  or  matter  in  arm,  as  de- 
scribed by  German  physicians,  it  was  not  a  proper  time  to 
perform  operation.  Where  pus  is  small  in  amount,  and 
gives  patient  no  pain,  it  does  no  harm.  Would  probably  be 
absorbed.  Atrophy  does  not  indicate  that  there  has  been  no 
proper  circulation,  but  results  naturally  from  the  injury,  and 
from  necessary  confinement  of  the  limb.  .  No  evidence  of 
gangrene  in  the  appearance  of  arm,  as  described  in  evidence. 
I  use  two  splints,  with  a  small  one  two  inches  long,  some- 
times, when  fracture  is  very  low  in  the  arm.    This,  however, 


FRACTURES  NEAR  WRIST-JOINT.  101 

is  not  necessary  if  front  splint  extends  to  palm  of  hand. 
Never  used  four  splints.  In  my  judgment  the  bend  in  ulna 
is  owing  to  operation  in  New  York.  Think  radius  would 
have  completely  united  under  defendant's  treatment.  We 
have  no  other  method  of  effecting  imion  than  that  pursued 
by  him. 

Cross-examined.  The  want  of  power  of  extension  in 
thumb  is,  I  think,  owing  to  a  cutting,  or  wounding,  of  ex- 
tensor muscle,  when  operation  was  performed.  Can  account 
for  it  in  no  other  way. 

At  this  stage  of  the  trial,  when  defendant's  counsel  were 
about  to  recall  Dr.  Lewis,  and  were  expecting  to  pro- 
ceed with  the  examination  of  the  other  medical  experts  sum- 
moned by  tliem,  the  senior  counsel  for  plaintiff  rose  and 
stated  to  the  court  that  the  prosecution  of  the  case  would 
proceed  no  further.  Until  the  opening  of  the  junior  counsel 
for  the  defence,  he  had  been  under  a  misapprehension  as  to 
the  nature  of  the  fracture,  having  been  given  to  understand, 
after  careful  inquiry,  that  it  was  both  simple  and  not  at  all 
serious  in  its  nature.  It  now  appeared  in  evidence  that  the 
fracture  was  both  compound  and  comminuted,  and  one  very 
difhcult  of  treatment.  It  appeared,  also,  that  the  defend- 
ant's ti'eatment  had  been  skilful  and  correct.  In  justice, 
therefore,  to  the  defendant,  the  trial  should  end  here.  He 
would  consent  that  a  formal  verdict  should  be  at  once  taken 
for  the  defendant,  unless  his  counsel  desired  to  call  the  re- 
mainder of  their  experts,  in  order  to  vindicate  still  more 
completely  the  treatment  pursued  by  their  client. 

In  reply,  the  senior  counsel  for  the  defendant  acknowl- 
edged becomingly  the  honorable  course  taken  by  plaintiff's 
counsel.  He  would  have  been  glad  to  have  placed  other 
medical  gentlemen  upon  the  stand,  whose  approbation  of  the 
defendant's  mode  of  practice  would  have  been  equally  signal 
with  that  of  the  two  already  called ;  but  in  the  present 
position  of  the  case,  this  was  in  no  way  necessary.  He  asked 
the  court,  accordingly,  for  a  verdict. 

The  court  (Hon.  Pliny  Merrick)  expressed  itself  highly 


102  CIVIL   MALPRACTICE. 

gratified  by  the  proceeding  of  the  plaintiff's  counsel.  The 
evidence  of  the  plaintiff  and  of  the  physicians  from  New- 
York  had,  taken  alone,  made  out  a  case  entirely  sufficient  to 
justify  the  counsel  in  going  to  trial.  The  defendant  had, 
however,  by  his  own  testimon}^  clearly  acquitted  himself  of 
fault ;  and  certainly  a  junior  practitioner  of  law  who  should 
receive  from  his  elder  brethren  the  decided  approval  which 
the  defendant  had  met  with  in  this  case,  would  have  abun- 
dant cause  to  congratulate  himself.  The  court  expressed  itself 
as  unable  to  understand  what  had  induced  the  plaintiff  to  in- 
stitute this  suit. 

Whereupon  a  verdict  for  defendant  was  ordered  and 
taken." 

Smotheks  v.  Hanks.1 

"Action"  to  recover  damages  of  the  defendant,  a  practising 
physician,  for  alleged  negligent,  ignorant,  and  unskilful  treat- 
ment, by  him,  of  the  plaintiff''s  arm,  the  bones  of  which  had 
been  fractured  near  the  wrist.  The  cause  was  tried  by  a 
jury,  and  the  evidence  introduced  tended  to  show  that  plain- 
tiff's arm  had  been  broken ;  that  defendant,  who  held  him- 
self out  as  a  surgeon,  undertook  the  cure ;  that,  by  reason  of 
defendant's  negligence  or  ignorance,  a  perfect  cure  was  not 
effected  ;  that  the  arm,  hand,  and  fingers  were  crooked  and 
stiff  —  perhaps  permanently  so,  perhaps  not.  The  jury  found 
a  verdict  for  plaintiff  for  $2,000,  which,  on  a  motion  for  a 
new  trial,  was  reduced  to  $1,200,  and  judgment  was  ren- 
dered thereon,  from  which  defendant  appeals.  The  further 
facts  are  stated  in  the  opinion. 

Cole,  J.  (After  deciding  a  question  of  practice.)  It  is 
next  assigned  that  the  court  erred  in  giving  the  seventh  in- 
struction, which  is  as  follows  :  'If  the  defendant  undertook, 
in  the  capacity  of  a  surgeon,  to  treat  the  fractured  arm  of 
the  plaintiff,  he  thereby  contracted  to  possess  and  employ, 
in  the  treatment  of  the  case,  such  reasonable  skill  and  dili- 
gence as  are  ordinarily  exercised  in  the  profession  by  thor- 
1  34  Iowa,  286;  11  Am.  Eep.  141. 


FRACTURES   NEAR   WRIST-JOINT.  103 

ouglily-educated  sui'geons,  having  regard  to  the  improve- 
ments and  advanced  state  of  the  profession  at  the  time  ;  and 
if  he  has  failed  in  so  doing,  without  any  fault  or  neglect  of 
the  plaintiff,  he  is  liable  in  damages  therefor.' 

In  our  opinion  this  instruction  does  not  give  the  true  legal 
standard  as  to  the  skill  and  diligence  required.  The  error 
consists  in  requiring  the  measure  of  skill  and  diligence  ordi- 
narily exercised  by  thorovghly  educated  surgeons  ;  whereas, 
the  true  measure  is  that  ordinarily  exercised  in  the  profession 
by  the  members  thereof  as  a  body.  That  is,  the  average  of 
the  reasonable  skill  and  diligence  ordinarily  exercised  by  the 
profession  as  a  whole.  Not  that  exercised  by  the  thoroughly 
educated  ;  nor  yet  that  exercised  by  the  moderately  educated, 
nor  merely  of  the  well  educated,  but  the  average  of  the  thor- 
ough, the  well,  and  the  moderate  —  all,  in  education,  skill, 
diligence,  &c.  We  do  not  stop  to  discuss  critically  the  mean- 
of  the  term,  '  thoroughly  educated  ; '  nor  is  it  necessary  to 
prove  that  it  means  '  fully,  completely,  and  perfectly  edu- 
cated,' or  that  it  necessarily  implies  an  entire  and  perfect 
knowledo^e.  It  is  enough  that  it  must  mean  that  the  stand- 
ard  of  the  skill  and  diligence  was  not  the  average  of  the 
whole  body  of  the  profession,  or  in  other  words,  ordinary 
skill,  but  was  that  exercised  by  some  defined  or  undefined 
portion  of  the  profession,  or  in  other  words  more  than  mere 
ordinary  skill.  Of  course,  in  determining  this  ordinary  skill, 
'  regard  should  be  had  to  the  improvements  and  advanced 
state  of  the  profession  at  the  time '  the  case  was  treated,  for 
such  regard  is  necessary  in  order  to  correctly  ascertain  the 
true  standard  of  ordinary  skill.  It  is  also  doubtless  true 
that  the  standard  of  ordinary  skill  may  vary  even  in  the 
same  state,  according  to  the  greater  or  lesser  opportunities 
afforded  by  the  locality,  for  observation  and  practice,  from 
which  alone  the  highest  degree  of  skill  can  be  acquired.  As 
to  this  last  thought,  see  Shearman  &  Redfield  on  Neg.  1st  ed. 
§  436,  p.  491.  And  as  to  skill  and  diligence  generally  as 
above  stated,  see  lb.  §§  431-443,  and  the  cases  cited  in  the 
notes.     See  also  Howard  v.  Grover,  28  Me.  97  ;  Simonds  v. 


104  CIVIL   MALPRACTICE. 

Henry,  39  Me.  155  ;  Patten  v.  Wiggin,  51  Me.  595  ;  Landon 
V.  Sumphrey,,  9  Conn.  209  ;  Reynolds  v.  Gfraves,  3  Wis. 
416 ;  G-allaher  v.  Thompson,  Wright's  (Ohio)  Rep.  466 ; 
Bowman  v.  Woods,  1  Gi-een  (Iowa)  Rep.  441. 

We  are  not  disposed  in  any  degree,  not  even  in  the  very 
least,  to  let  down  or  lower  the  true  standard  of  professional 
skill  or  diligence,  either  in  medicine,  law,  or  other  applied 
science.  But  we  recognize  the  fact  that  this  standard  must 
be  a  practical  and  attainable  one,  and  not  one  of  mere  theory 
or  fancied  perfection,  the  enforcement  of  which  would  cause 
much  litigation,  and  necessarily  drive  from  the  profession  a 
large  portion  of  those  from  whose  practice  the  largest  meas- 
ure of  practical  good  is  attained. 

The  case  of  McCandless  y.  McWTia,  22  Penn.  261,  is  so 
often  cited,  and  jDarts  of  the  opinion  by  Woodwahd,  J.,  so 
often  quoted  in  text-books  and  cases  that  we  deem  it  proper 
to  give  it  here  a  somewhat  extended  analysis.  The  case 
arose  in  Pittsburg,  Penn.,  and  was  decided  by  the  Supreme 
Court,  1853.  The  plaintiff  had,  in  some  wa}^,  suffered  '  an 
oblique  comminuted  fracture  of  the  tibia  and  fibula  of  the  leg, 
which  fracture  was  nearly  half  way  from  the  ankle  to  the 
kuee.'  The  defendant,  a  regular  practising  physician  and 
surgeon,  was  called  to  treat  it.  The  plaintiff  claimed  that 
by  the  want  of  skill  and  attention  by  defendant,  the  leg  had 
become  shorter  than  the  other.  The  defendant  denied  the 
want  of  skill,  and  alleged  that  the  shortening  came  from  the 
improper  loosening  by  plaintiff  of  the  bandages  and  exten- 
sions, and  the  previous  intemperate  habits  of  plaintiff.  There 
was  a  jury  trial  in  the  court  below,  and  the  court  instructed 
the  jury  '  that  the  defendant  was  bound  to  bring  to  his  aid 
the  skill  necessary  for  a  surgeon  to  set  the  leg  so  as  to  make 
it  straight,  and  of  equal  length  with  the  other  when  healed, 
and  if  he  did  not,  he  was  accountable  in  damages,  just  as  a 
stone-mason  or  bricklayer  would  be  in  building  a  wall  of 
poor  materials,  and  the  wall  fell  down  ;  or  if  he  built  a  chim- 
ney and  it  would  smoke  by  reason  of  a  want  of  skill  in  its 
construction,  they  could  not  only  recover  pay  for  building,  but 


FEACTUEES  NEAK  WKIST-JOINT.  105 

would  be  accountable  for  damages  ;  and,  if  suits  were  more 
frequently  brought,  we  would  perhaps  have  fewer  practition- 
ers of  medicine  and  surgery  not  possessing  the  requisite  pro- 
fessional skill  and  knowledge  than  we  now  have.  But  it  is 
due  to  the  defendant  to  state  that,  with  the  exception  of  the 
matter  complained  of  in  this  suit,  there  is  nothing  in  the 
evidence  given  to  show  that  he  is  not  respectable  in  his  pro- 
fession.' 

The  opinion  of  a  majority  of  the  court  was  delivered  by 
Woodward,  J.,  and,  in  remarking  upon  the  first  instruction 
above,  he  says  :  '  It  is  impossible  to  sustain  this  proposition. 
It  is  not  true  in  the  abstract,  and  if  it  were,  it  was  inappli- 
cable to  the  circumstances  under  investigation.  The  implied 
contract  of  a  physician  or  surgeon  is  not  to  cure,  to  restore  a 
fractured  limb  to  its  natural  perfectness,  but  to  treat  the  case 
with  diligence  and  skill.  The  fracture  may  be  so  compli- 
cated that  no  skill  vouchsafed  to  man  can  restore  original 
straightness  and  length  ;  or  the  patient  may,  by  wilful  dis- 
regard of  the  surgeon's  directions,  impair  the  effect  of  the 
best  conceived  measures.  He  deals  not  with  insensate  mat- 
ter, like  the  stone-mason  or  bricklayer,  who  choose  their  ma- 
terials and  adjust  them  according  to  mathematical  lines,  but 
he  has  a  suffering  human  being  to  treat,  a  nervous  system  to 
tranquillize,  and  a  will  to  regulate  and  control.  The  evidence 
before  us  makes  this  strong  distinction  between  surgery  and 
masonry,  and  shows  how  the  judge's  inapt  illustration  was 
calculated  to  lead  away  the  jury  from  the  true  point  of  the 
cause. 

The  question  was  not  whether  the  doctor  had  brought  to 
the  case  skill  enough  to  make  the  leg  as  straight  and  long  as 
the  other,  but  whether  he  had  employed  such  reasonable  skill 
and  diligence  as  are  ordinarily  exercised  in  his  j^rofession. 
For  less  than  this  he  is  responsible  in  damages  ;  but  if  he  be 
held  to  the  measure  laid  down  by  the  court  below,  the  im- 
plied contract  amounts  on  his  part  to  a  warranty  of  cure,  for 
which  there  is  no  authority  in  law The  only  remain- 
ing error  assigned  (upon  the  other  instruction)  is  scarcely 


106  CIVIL  MALPRACTICE. 

worthy  of  notice.  The  action  depended  so  entirely  on  its 
own  circumstances,  that  the  observation  of  the  court  as  to 
the  pohcy  of  such  suits  was  irrelevant,  and  we  may  fairly 
presume  harmless.  But,  for  misdirection  on  the  other  point, 
the  judgment  is  reversed,  and  a  venire  de  7iovo  awarded.' 

The  precise  point  decided  by  the  case  is,  that  physicians 
are  not  accountable  in  damages  for  a  failure  to  make  a  per- 
fect cure,  just  as  a  stone-mason  or  bricklayer  is  liable  for  a 
failure  to  make  a  perfect  job.  What  is  above  quoted  from 
the  opinion  is  substantially  all  that  legitimately  pertains  to 
it.  But  the  learned  judge  says  very  much  more,  and  some 
of  it  is  not  entirely  consistent  with  that  we  have  quoted, 
while  some  of  it  is.  To  illustrate,  we  quote  further :  '  We 
have  stated  the  rule  to  be  reasonable  skill  and  diligence  ;  by 
which  we  mean  such  as  thoroughly  educated  surgeons  ordi- 
narily employ.  If  more  than  this  is  expected,  it  must  be 
expressly  stipulated  for  ;  but  this  much  every  patient  has  a 
right  to  demand  in  virtue  of  the  implied  contract  which  re- 
sults from  intrusting  his  case  to  a  person  holding  himself  out 
to  the  world  as  qualified  to  practise  this  important  profes- 
sion.' But  afterwards  he  uses  this  language:  'The  law  has 
no  allowance  for  quackery.  It  demands  qualification  in  the 
profession  practised  ;  not  extraordinary  skill,  such  as  belongs 
only  to  a  few  men  of  rare  genius  and  endowments,  but  that 
degree  which  ordinarily  characterizes  the  profession.  And  in 
judging  of  this  degree  of  skill,  in  a  given  case,  regard  is  to 
be  had  to  the  advanced  state  of  the  profession  at  the  time.' 
In  our  opinion,  in  this  last  quoted  paragraph,  the  learned 
judge  reannounced  the  correct  rule  of  law,  the  same  as  he 
had  in  the  body  of  the  opinion  as  set  out  above.  But  in  the 
preceding  quotation  he  announced  a  very  different  rule,  to 
wit :  '  Such  reasonable  skill  and  diligence  as  thoroughly  edu- 
cated surgeons  ordinarily  employ.' 

The  whole  case  of  McCandless  v.  McWha  is  a  remark- 
able one.  None  of  the  evidence  taken  upon  the  trial  in  the 
court  below  was  before  the  supreme  court,  except  the  depo- 
sition of  one  of  the  witnesses  on  the  part  of  the  defence,  and 


FRACTURES   NEAR   WRIST-JOINT.  107 

yet,  Lewis,  J.,  without  dissenting  from  tlie  opinion  of 
Woodward,  J.,  filed  an  extended  opinion  in  which  he  dis- 
cusses the  merits  of  the  case  upon  the  evidence  in  the  Hght 
of  a  hirge  number  of  medical  treatises,  from  which  he  quotes 
and  upon  which  he  comments.  But  he  sums  up  his  discus- 
sion with  the  statement,  that  the  main  question  is:  'Did 
the  surgeon  exercise  ordinary  skill  and  care  in  his  treatment 
of  the  patient  9  If  he  did,  he  is  not  liable.  If  he  did  not, 
he  is.'  While  Black,  C.  J.,  delivered  the  following  opin- 
ion :  '  We  all  concur  in  the  law  of  this  case.  The  judge  in 
his  charge  fell  into  an  error  in  stating  the  amount  of  skill 
required  in  the  treatment  of  the  case.  We  reverse  for  that 
reason.  But  when  we  decide  the  legal  point  we  are  done 
with  it.  We  are  not  authority  on  questions  of  surgery. 
Our  hands  are  abundantly  full  with  questions  that  belong  to 
our  own  profession,  without  volunteering  opinions  on  sciences 
which  relate  to  others.  I  think  it  necessary  to  say  this  in 
order  to  prevent  the  court  below,  on  a  second  trial,  from 
supposing  that  we  intend  to  give  them  any  instructions  on 
matters  in  which  we  have  no  jurisdiction.' 

The  fact  thalt  we  now  have  before  us  two  cases  in  which 
the  courts  below  have  been  led  into  error  by  quotations 
from  Judge  Woodward's  opinion,  found  in  the  notes  in 
different  text-books,  has  led  us  to  give  the  case  this  extended 
notice.  The  point  decided  and  the  law  actually  ruled  in  the 
case  were  right  beyond  question.  But  very  much  of  the 
opinions  of  Woodward  and  Lewis,  JJ.,  are  outside  of 
the  case,  and  their  observations  are  well  calculated  to  mis- 
lead. It  may  not  be  out  of  place  to  remark,  that  a  majority 
of  this  court  concur  with  Chief  Justice  Black,  in  his  obser- 
vation that  '  our  hands  are  abundantly  full  with  questions 
that  belong  to  our  own  profession,  without  volunteering 
opinions  on  sciences  which  relate  to  others.'  For  the  error 
in  the  instruction,  as  before  noticed,  the  judgment  is 

Reversed^ 

Beck,  J.,  dissented. 


108  CIVIL   MALPRACTICE. 


RiTCHEY  V.  WeST.I 


Walker,  J.  "  No  question  can  arise  on  the  correctness 
of  the  decisions  of  the  court  below,  in  admitting  or  reject- 
ing evidence  in  this  case,  as  no  exceptions  were  preserved  in 
the  record. 

The  principle  is  plain  and  of  uniform  application,  that 
when  a  person  assumes  the  profession  of  physician  and  sur- 
geon, he  must  iu  its  exercise  be  held  to  employ  a  reasonable 
amount  of  care  and  skill ;  for  anything  short  of  that  degree 
of  skill  in  his  practice,  the  law  will  hold  him  responsible  for 
any  injury  which  may  result  from  its  absence.  While  he  is 
not  required  to  possess  the  highest  order  of  qualification  to 
which  some  men  attain,  still  he  must  possess  and  exercise 
that  degree  of  skill  which  is  ordinarily  possessed  by  members 
of  the  profession.  And  whether  the  injury  results  from 
want  of  skill  or  want  of  its  application,  he  will,  in  either,  be 
equally  liable.  This  the  law  implies,  whenever  a  retainer  is 
shown  ;  but  when  the  services  are  rendered  as  a  gratuity, 
gross  negligence  will  alone  create  liability. 

This,  then,  presents  the  question,  whether  the  evidence 
in  the  case  establishes  a  want  of  ordinary  skill  or  reasonable 
care,  in  ■  the  treatment  of  this  case.  The  retainer  having 
been  proved,  it  is  not  material  to  inquire  whether  the  case 
shows  gross  incompetency  or  neglect  of  duty.  The  concur- 
ring evidence  of  all  physicians  shows  that  the  splints  and 
bandages  were  not  properly  applied.  Had  they  extended  be- 
low the  wrist,  the  evidence  seems  to  show  that  they  would 
have  confined  the  wrist  to  its  proper  place.  It  is  probable 
that  such  a  practice  would  have  tended,  notwithstanding 
the  fracture,  to  have  held  the  broken  bone  more  nearly 
to  its  place  until  a  union  was  formed,  and  thus  have  pre- 
vented to  some  extent,  if  not  altogether,  the  deformity  and 
disability  to  use  the  hand.  The  physicians  also  agree  that 
the  splints  employed  were  not  of  sufficient  width,  as  well 
1  23  111.  385. 


FRACTURES   NEAR   WRIST-JOINT.  109 

as  too  short,  for  the  treatment  of  the  fracture,  even  if  they 
had  been  midway  between  the  wrist  and  the  elbow,  as  he 
supposed.  And  from  this  evidence  it  woukl  seem  that  there 
must  liave  been  a  want  of  ordinary  skill  or  great  negligence 
in  the  treatment  of  the  case,  in  not  detecting  the  dislocation 
of  the  wrist-joint.  The  physicians  all  agree  that  this  portion 
of  the  injury  could  have  been  easily  detected  by  ordinary 
care  and  skill ;  and  the  fact  that  it  had  been  and  was  still 
dislocated,  was  afterwards  detected  by  a  person  who  did  not 
profess  surgery  or  skill  in  such  matters,  and  had  previously 
only  had  slight  experience  in  cases  of  fractured  limbs.  Then 
if  the  evidence  of  the  medical  men  who  were  examined  as 
witnesses  is  to  be  credited,  and  it  is  supported  by  the  fact 
that  the  dislocation  of  the  wrist  was  detected  by  a  person 
professing  to  have  no  skill,  there  was  a  want  of  ordinary 
care  or  skill,  or  both,  manifested  in  the  treatment  of  the 
case. 

The  medical  witnesses  all  testify  that  it  is  customary  and 
necessary  for  the  surgeon  to  pay  a  second  visit,  for  the  pur- 
pose of  ascertaining  how  the  case  is  progressing,  and  whether 
further  treatment  is  required,  unless  it  be  dispensed  with  by 
the  patient.  There  was  no  conflict  in  the  evidence  that  the 
plaintiff  in  error  was  requested  to  return,  which  he  agreed  to 
do,  for  the  purpose  of  further  examination  on  the  following 
day,  and  that  he  never  afterwards  returned.  Then  the  fact 
is  established  by  the  evidence,  that  he  not  only  promised  to 
return,  but  that  it  was  his  duty  to  have  done  so,  unless  noti- 
fied that  such  attendance  would  be  dispensed  with.  Then  if 
this  was  a  part  of  his  professional  duty,  its  omission  estab- 
lishes a  want  of  reasonable  cai-e  and  diligence,  which,  to- 
gether with  his  failing  to  comply  with  agreement  to  return, 
must  render  him  liable  for  all  injury  which  has  resulted  from 
its  non-observance.  Had  he  returned,  as  his  duty  and  agree- 
ment required,  in  all  probability  the  visit  would  have  re- 
sulted in  detecting  the  true  situation  of  the  injur}^  and  relief 
might  then  have  been  obtained  by  the  employment  of  the 
necessary  surgical  aid.     The  court  therefore  did  right  in  re- 


110  CIVIL  MALPRACTICE. 

fusing  the  twelfth  instruction  asked  for  by  the  plaintiff  in 
error,  as  it  assumed  that  it  was  not  his  duty  to  again  visit 
the  defendant  in  error. 

It  is  likewise  urged  that  the  court  below  erred  in  refus- 
ing to  grant  a  new  trial  on  the  afSdavit  of  newl}'^  discovered 
evidence.  The  facts  alleged  in  the  affidavit  to  have  been 
newly  discovered  were  only  cumulative.  The  question  tried 
by  the  jury  was,  whether  the  wrist  was  fractured  and  dis- 
located at  the  time  when  the  plaintiff  in  error  was  called  to 
treat  the  injurj^.  The  theory  of  the  defence  was,  that  the 
wrist  was  not  then  injured.  This  evidence,  which  is  said  to 
be  newly  discovered,  if  it  had  been  produced,  would  have 
only  tended  to  show  that  the  wrist  received  no  injury  at  the 
time  he"  was  called  for  medical  advice.  The  evidence  of 
the  witnesses  of  defendant  in  error  was,  that  the  wrist  was 
then  injured,  and  from  which  it  never  recovered,  and  the 
newly  discovered  evidence  was  only  rebutting,  and  was  cu- 
mulative to  his  other  evidence  of  that  character. 

But  if  this  were  not  true,  the  affidavit  was  fatally  de- 
fective in  not  stating  that  the  evidence,  said  to  be  newly  dis- 
covered, was  true.  If  he  was  unable  himself  to  swear  to 
its  truth,  he  should  have  produced  the  affidavits  of  the  wit- 
nesses themselves,  to  satisfy  the  court  of  such  truth.  In  an 
apjDlication  for  a  new  trial  because  of  newly  discovered  evi- 
dence, it  is  not  sufficient  for  the  party  to  state  that  he  has 
been  informed  and  believes  that  the  witnesses  will  testify  to 
the  facts,  but  the  truth  of  such  facts  must  be  verified  by 
affidavit.  Otherwise  but  few  cases  would  occur  in  which  a 
party  might  not  procure  some  person  to  state  that  he  would 
on  the  trial  swear  to  the  necessary  facts  to  procure  the  new 
trial,  and  yet  when  placed  on  the  stand,  wholly  fail  to  testify 
in  accordance  with  such  statement.  Such  a  practice  would 
be  liable  to  great  abuse,  and  should  not  therefore  be  adopted. 
.  Upon  the  whole  of  this  record  Ave  are  unable  to  perceive 
any  error  for  which  the  judgment  of  the  court  below  should 
be  reversed,  wherefore  the  same  is  affirmed." 


FRACTUEES   NEAR   WRIST-JOINT.  Ill 


SCUDDEE,   V.    CeOSSAN.  1 

OsEOEN  J.  "  This  was  an  action  brought  by  the  appellee 
against  the  appellants  for  malpractice. 

The  complaint  consists  of  three  paragraphs. 

The  first  alleges  that  the  appellants  were  practising  phy- 
sicians and  surgeons,  and  as  such  were  called  on  by  Thomas 
Crossan,  a  boy  of  the  age  of  ten  years,  the  child  and  servant 
of  the  appellee,  and  requested  to  set  his  broken  arm,  which 
he  then  had  ;  that  they  pretended  to  do  so  ;  that  they  did 
it  unskilfully,  negligently,  and  unprofessionally,  by  reason 
whereof  his  arm  became  inflamed,  and  to  such  an  extent 
mortified  that  it  necessarily  had  to  be  amputated. 

The  second  avers  that  the  appellants  were  physicians  and 
surgeons,  practising  their  profession  as  partners,  and  as  such 
undertook  and  pretended  to  set  the  broken  arm  of  Thomas 
Crossan,  the  child  and  servant  of  the  appellee,  of  the  age  of 
ten  years,  at  the  request  of  the  boy  ;  that  they  attempted  to 
set  the  arm  in  a  skilful  manner  ;  that  they  did  it  in  such 
a  bungling,  negligent,  and  unskilful  manner  that  the  arm 
mortified  and  had  to  be  amputated. 

The  third  chai'ges  that  the  appellee  is  the  father  of  Thomas 
Crossan,  an  infant  under  the  age  of  twenty-one  years,  and  as 
such  entitled  to  his  services  and  society  ;  that  the  appellants 
were  practising  physicians  and  surgeons,  and  that  as  such 
were  called  on  and  requested,  for  a  reasonable  compensation, 
to  see,  examine,  attend,  cure,  and  heal  his  said  son  and  ser- 
vant, whose  right  arm  was  dislocated  ;  that  in  pursuance  of 
such  request,  they  agreed  and  undertook  to  set  and  cure  the 
arm ;  that  they  did  attempt  to  do  so,  but  that  they  so  neg- 
ligently, unskilfully,  and  unprofessionally  set,  bandaged,  and 
compressed  the  arm,  and  so  negligently,  unfaithfull}^,  and 
unprofessionally  neglected  and  refused  thereafter  to  attend 
him  in  such  sickness,  and  dress,  adjust,  cure,  and  heal  the 
broken  arm,  that  amputation   became  necessary  to   save  his 

1 43  Ind.  343. 


112  CIVIL  MALPRACTICE. 

life,  and  by  reason  of  such  carelessness,  &c.,  it  was  necessa- 
rily amputated.  A  separate  demurrer  was  filed  to  each  of 
the  paragraphs  of  the  complaint  and  overruled,  to  which 
exceptions  were  taken.  An  answer  of  two  paragraphs  was 
then  filed.  The  first  was  the  general  denial.  The  second 
alleged  that  the  injury  complained  of  was  caused  by  the 
negligence  of  the  plaintiff  and  his  said  infant  son,  and  not 
the  unskilfulness  and  neglect  of  the  appellants.  After  an 
unsuccessful  motion  to  strike  out  the  second  paragraph 
of  the  answer,  the  appellee  filed  a  reply  of  general  denial. 

The  cause  was  tried  by  a  jury,  resulting  in  a  verdict  of 
four  hundred  and  fifty  dollars.  The  appellants  filed  a 
motion  for  a  new  trial  which  was  overruled,  and  judgment 
was  rendered  on  the  verdict.  Exceptions  were  taken  and 
thirty  days'  time  given  to  file  a  bill  of  exceptions.  The  bill 
was  not  filed  within  the  time  allowed.  The  errors  assigned 
are  :  1st.  In  overruling  the  several  demurrers  to  the  com- 
plaint .     2d.  In  overruling  the  motion  for  a  new  trial. 

It  is  claimed  that  the  complaint  is  bad,  because  it  fails  to 
allege  that  the  amputation  of  the  arm  became  necessary 
without  the  fault  of  the  appellee  or  the  boy. 

We  are  referred  to  several  cases  where  it  has  been  held 
that  in  a  certain  class  of  actions  for  an  injury  to  the  person, 
caused  by  the  negligence  of  another,  it  must  appear  from  the 
complaint,  by  express  averment,  that  the  plaintiff  was  with- 
out fault,  or  it  must  clearly  appear,  from  the  facts  alleged, 
that  such  was  the  case.  The  Toledo^  Sj-c.  Railway  Co.  v. 
Bevin,  26  Ind.  443  ;  The  JSvansville,  ^c.  Railroad  Co.  v. 
Dexter.,  24  Ind.  411 ;  The  Indianapolis,  ^c.  R.  R.  Co.  v. 
Keeleys  Adm'r,  23  Ind.  133. 

In  this  class  of  suits  the  plaintiff  is  required,  as  a  general 
proposition,  to  prove  that  the  immediate  cause  of  the  injury 
complained  of  was  the  wrongful  act  of  the  defendant,  to 
which  his  own  wrongful  act  did  not  immediately  contribute. 
Hence,  it  has  been  held  that  the  complainant  must  show  by 
averments  that  he  was  not  in  fault.  The  JEvansville,  ^e. 
R.  R.   Co.  V.  Riatt,  17  Ind.  102. 


FEACTURES  NEAR  WRIST-JOINT.  113 

In  this  case  allegations  are,  that  the  appellants  were 
practising  physicians  and  surgeons,  and  as  such  undertook 
to  set  a  broken  arm  of  the  infant  son  of  the  appellee ;  that 
by  reason  of  their  unskilfulness,  negligence,  and  want  of 
care  in  treating  the  broken  arm,  it  inflamed  and  mortified, 
and  had  to  be  amputated.  We  think  the  averments  suffi- 
cient to  show  that  the  appellee  and  his  injured  son  were 
without  fault,  and  that  their  negligence  did  not  contribute 
to  the  result.  The  Michigan  Southern^  ^c.  R.  R.  Co.  v. 
Lantz.,  29  Ind.  528.  It  seems  to  us  that,  on  principle, 
generally  when  the  complainant,  as  in  this  case,  shows  what 
the  defendant  did,  that  his  negligent  and  wrongful  acts 
caused  the  injury  complained  of,  it  sufficiently  appears  that 
the  plaintiff  is  without  fault.  The  allegation,  that  the  in- 
jury was  caused  by  the  want  of  professional  skill  and  care  of 
the  appellants,  is  not  sustained,  if  it  appear  that  the  negli- 
gence of  the  appellee  or  his  son,  whose  arm  was  broken,  con- 
tributed to  it. 

'  That  averment  must  be  proved  before  the  plaintiff  is  en- 
titled to  a  verdict.'    See  R.  R.  Oo,  v.  Grladmon,  15  Wall.  401. 

'  Proof  of  the  commission  by  the  defendant  or  his  ser- 
vants of  the  injury  of  which  the  plaintiff  complains,  very 
generally  carries  with  it  primd  facie  proof  of  negligence  ;  and 
it  is  for  the  defendant  to  show  that  the  injury  was  the  re- 
sult of  inevitable  accident,  or  that  it  was  occasioned  by  the 
negligence  or  misconduct  of  the  plaintiff  himself.'  Addison 
on  Torts,  3d  edit.  400.  '  Contributory  negligence  on  the  part 
of  the  plaintiff,  who  complains  that  he  has  been  damnified 
by  the  negligence  of  the  defendant,  is  in  general  an  answer  to 
the  action,  on  the  ground  that  a  man  cannot  complain  of  that 
which  he  has  himself  helped  to  bring  about.'     lb.  18. 

The  appellants  also  object  to  the  third  paragraph  of  the 
complaint,  because  it  does  not  state  with  whom  the  contract 
to  set  the  broken  arm  was  made,  or  who  employed  the  ap- 
pellants. 

The  allegation  was,  that  the  appellants  were  physicians 
and  surgeons,  and  as  such  were  called  on  and  requested,  for 


114  CIVIL  MALPEACTICE. 

a  reasonable  compensation,  to  set  a  broken  arm  of  tbe  son  of 
the  appellee ;  that  in  pursuance  of  that  request,  they  under- 
took to  set  and  cure  the  arm. 

'  In  the  construction  of  a  pleading  for  the  purpose  of  de- 
termining its  effects,  its  allegations  shall  be  liberally  con- 
strued "with  a  view  to  substantial  justice  between  the  parties ; 
but  when  the  allegations  of  a  pleading  are  so  indefinite  or 
uncertain  that  the  precise  nature  of  the  charge  or  defence  is 
not  apparent,  the  court  may  require  the  pleading  to  be  made 
definite  and  certain  by  amendment.'  Sec.  90,  2  G.  &  H. 
112.  If  it  was  uncertain  who  requested  the  appellants  to 
render  the  service,  or  with  whom  the  contract  was  made,  the 
defect  could  be  reached  by  motion  to  make  more  certain,  and 
hot  in  this  case  by  demurrer.  The  nature  of  the  charge  was 
not  uncertain. 

The  appellants  have  cited  no  authority  in  support  of  the 
last  objection.  We  think  the  averment  sufficient.  1  Chitty 
PI.  384. 

The  bill  of  exceptions,  not  having  been  filed  within  the 
time  allowed  by  the  court,  is  not  properly  in  the  record,  and 
consequently  no  question  arising  on  the  motion  for  a  new 
trial  is  before  us.  Port  v.  Russell^  36  Ind.  60  ;  Byers  v. 
Hickman,  36  Ind.  359. 

The  judgment  is  affirmed,  with  costsy 


FEACTURES   OF  FEMUR.  115 


CHAPTER  V. 

ALLEGED  MALPRACTICE  IN  FRACTURES  OF  FEMUR. 

V.  Oatman.i 

(Superior  Court  of  New  York.) 

History.  "  Dr.  J.  S.  Oatman,  a  reputable  physician  of 
New  York,  attended  a  carman,  aged  sixty-four,  for  a  commi- 
nuted fracture  of  the  femur  near  the  condyles.  The  patient 
being  an  aged  man,  and  suffering  under  depraved  health  at  the 
time,  had  also  an  erysipelatous  affection  of  the  limb  of  some 
months'  standing,  accompanied  with  oedema  of  the  injured  leg. 
The  inflammation  and  swelling  which  supervened  immediately 
after  the  accident  precluded  any  very  accurate  diagnosis,  and 
the  morbid  condition  of  the  patient,  and  especially  of  the  limb, 
forbade  any  considerable  pressure,  either  by  bandages  or  the 
application  of  extension.  The  posture  found  to  give  the  pa- 
tient most  comfort  was  that  of  semi-flexion,  and  the  double- 
inclined  plane  was  adopted,  the  apparatus  of  Palmer  and  Roe 
being  preferred,  upon  which  the  limb  was  placed,  and  suitably 
secured.  At  the  proper  time,  the  usual  attention  was  paid 
to  the  careful  adjustment  of  the  fragments  of  the  bone,  and 
all  the  extension  and  counter-extension  which  was  admissi- 
ble was  duly  made.  On  the  thirtieth  day  the  fracture  was 
found  firmly  united  by  Dr.  Cheesman,  who  examined  it, 
and  the  limb,  being  measured,  was  found  shortened  two  or 
two  and  a  half  inches. 

At  this  juncture,  a  young  physician  in  the  neighborhood 
called  in  to  see  the  patient,  without  the  knowledge  of  the 

1  Boston  Med.  and  Surg.  Jour.  vol.  xxxiv.  p.  449. 


116  CIVIL  MALPRACTICE. 

attending  surgeons,  and  witli  the  consent  of  the  patient  in- 
vited Drs.  Parker  and  Wood  to  visit  him,  both  of  Avhom 
gave  it  as  their  opinion  that  no  surgical  treatment  was 
called  for,  or  would  be  admissible.  A  son  of  the  patient 
soon  after  called  upon  Dr.  Oatman,  and  significantly  inti- 
mated a  proposition  to  settle  with  him  for  a  quid  pro  quo,  as 
the  only  alternative  to  a  suit  for  malpractice,  the  shortening 
of  the  limb  being  now  made  a  ground  of  complaint,  unskil- 
fulness  and  neglect  being  alleged.  The  doctor,  not  reHshing 
such  ingratitude  in  lieu  of  his  fee  for  faithful  services,  was 
not  very  patient  under  it,  resenting  it  as  an  outrage,  and 
acted  accordingly.  After  sis  months  had  passed,  the  suit 
was  brought,  and  the  testimony  of  Drs.  Mott,  Parker,  Wood, 
Reese,  Post,  Cheesman,  was  so  conclusive  and  unanimous, 
that  the  plaintiff's  counsel  would  have  submitted  patiently 
to  a  nonsuit,  but  the  jury  acquitted  the  defendant,  so  that 
his  triumph  was  complete. 

ABSTEACT  OF  EVIDENCE. 

On  the  trial  the  counsel  of  the  plaintiff,  as  instructed,  at- 
tempted to  show  that  the  fracture  had  been  badly  managed  ; 
that  the  apparatus  used  was  not  the  best ;  that  there  was  not 
sufl&cient  extension  and  counter-extension  used  to  prevent  the 
shortening  of  the  limb,  and  that  there  had  been  thus  a  want 
of  attention  and  skill  on  the  part  of  the  doctor,  by  reason  of 
which  he  was  left  a  cripple.  But  his  case  was  overthrown 
by  his  own  witnesses.  Dr.  James  R.  Wood  and  Dr.  Parker, 
both  of  whom  examined  the  limb  after  some  thirty  days,  and 
agreed  that  it  had  been  a  bad  case  of  crushed  bone,  in  which 
the  shortening  of  the  limb  was  unavoidable  under  any 
amount  of  skill ;  and  the  latter  gave  it  as  his  judgment  that 
the  patient  was  exceedingly  well  off  to  have  recovered  from 
such  an  accident  with  both  his  life  and  limb,  and  with  no 
other  disaster  than  a  short  leg. 

But  though  Dr.  Oatman  might  here  have  rested  his  case, 
and  submitted  it  to  the  jury  on  the  prosecutor's  own  testi- 
mony, yet  his  counsel  deemed  it  due  to  his  professional  char- 


FEACTURES  OF  FEMUE.  117 

acter  to  proceed  to  show,  by  witnesses  well  known  for  their 
surgical  skill  and  experience,  that  he  was  blameless  in  this 
case  and  its  results. 

Br.  Valentine  3fott,  a  surgeon  of  forty  years'  experience, 
testified  that  more  or  less  shortening  of  the  limb  is  uniformly 
the  result  after  fractured  thigh,  even  in  the  most  favorable 
circumstances ;  but  that  the  age  of  this  patient,  the  bad  char- 
acter of  the  fracture,  the  erysipelatous  state  of  the  limb,  and 
all  the  circumstances,  were  averse  to  a  favorable  result,  and 
likely  to  increase  the  extent  of  the  shortening. 

Dr.  David  M.  Reese  is  a  physician  and  surgeon  of  twenty- 
five  years'  practice,  and  testified  that  from  the  nature  of  the 
injury  as  described  by  the  witnesses,  there  could  be  no  doubt 
that  it  was  an  oblique  and  comminuted  fracture,  which  is 
always  unfavoi-able  and  renders  a  shortening  of  the  limb  in- 
evitable. In  such  a  fracture  there  is  always  injury  of  the 
soft  parts,  which  complicates  the  case  by  increasing  the  risk 
of  inflammation  and  swelling,  and  renders  it  liable  to  be  fol- 
lowed by  irritative  fever  and  other  constitutional  disturb- 
ance. The  age  of  the  patient  was  unfavorable  ;  the  erysipelas, 
and  especially  the  dropsical  swelling  of  the  limb  alleged  to 
be  present,  would  forbid  any  considerable  extent  of  pressure 
by  bandages,  or  extension  of  the  limb,  without  risking  the 
loss  of  both  limb  and  life.  The  Dictionary  of  Dr.  Cooper, 
shown  by  him,  was  regarded  as  good  surgical  authority  by 
the  profession  everywhere,  and  had  been  edited  by  himself, 
all  the  notes  having  been  republished  in  London  by  the  au- 
thor in  his  last  edition. 

Dr.  A.  C.  Fost,  one  of  the  surgeons  of  the  New  York 
Hospital,  stated  that  in  such  a  fracture  the  injury  to  the  soft 
parts  would  interfere  with  the  extension  of  the  limb  ;  and 
has  known  two  cases  in  which  the  attempt  to  make  exten- 
sion and  counter-extension  resulted  in  mortification,  and  the 
thighs  had  to  be  amputated.  The  age  of  the  patient  and 
diseased  state  of  the  limb  increased  these  dangers.  In  all 
such  cases,  a  very  considerable  shortening  of  the  limb  takes 
place  under  the  best  treatment  and  care,  and  the  removal  of 


118  CIVIL  MALPRACTICE. 

the  foot  bandage  by  the  patient,  as  in  this  case,  would  in- 
crease it.  In  half  an  hour  after  such  an  accident,  he  has 
known  the  swelling  to  be  so  great  as  to  forbid  any  success  in 
ascertaining  definitely  the  nature  of  the  injury. 

Dr.  Cheesman,  a  physician  and  surgeon  of  long  experience, 
saw  this  patient  with  Dr.  Oatman,  with  great  difficulty  in- 
spected the  thigh,  being  opposed  by  both  the  patient  and  his 
friends.  He  found  that  it  had  been  an  oblique  and  commi- 
nuted fracture,  now  united.  He  found  the  limb  shorter  than 
the  other,  as  it  uniformly  is  in  such  cases.  He  never  knew 
an  exception,  and  concurs  fully  in  the  opinion  that  the  age 
and  morbid  state  of  the  limb  in  this  case  forbade  any  greater 
extension  or  pressure  than  was  used,  and  was  obstructed  in 
his  inquiries  by  the  disturbance  and  resistance  made  to  his 
examination. 

Similar  and  corroborative  testimony  was  given  by  Dr. 
Dickinson  and  Mr.  McCord.  Dr.  Shepherd  was  then  exam- 
ined, who  had  attended  the  case  throughout,  and  bore  testi- 
mony that  there  was  no  want  of  attention  or  skill  on  the 
part  of  Dr.  Oatman,  who  manifested  throughout  a  becoming 
interest  in  the  patient's  welfare.  He  proved  the  morbid 
state  of  the  limb,  the  disturbance  of  the  bandage  by  the  pa- 
tient, and  the  adverse  circumstances  which  had  to  be  con- 
tended with  in  the  management  of  the  case. 

Dr.  Stoothoff  testified  that  he  accompanied  Dr.  Cheesman 
and  Dr.  Oatman  on  their  visit  to  the  patient,  and  learned 
from  the  latter  that  Dr.  Cockroft,  junior,  had  been  there, 
and  the  son  confessed  that  he  had  denied  it,  to  conceal  this 
clandestine  visit. 

In  the  progress  of  the  trial  there  was  a  display  of  surgical 
apparatus  ;  thigh-bones  both  sound  and  broken,  together 
with  a  beautiful  model  of  the  thigh,  taken  from  the  Ana- 
tomical Venus,  now  exhibiting  at  the  American  Museum, 
recently  imported  from  France  by  P.  T.  Barnum,  Esq.,  who 
kindly  loaned  it  for  the  purpose  of  enlightening  the  court, 
bar,  and  jury,  as  to  the  muscles  concerned  in  fractured 
thigh." 


FRACTURES  OF  FEMUR,  119 

The  foregoing  was  a  case  directly  attributable  to  a  viola- 
tion of  the  Code,  which  provides  that,  — 

"  A  physician,  in  his  intercourse  with  a  patient  under  the 
care  of  another  practitioner,  should  observe  the  strictest  cau- 
tion and  reserve.  No  meddling  inquiries  should  be  made  ; 
no  disingenuous  hints  given  relative  to  the  nature  and  treat- 
ment of  his  disorder ;  nor  any  course  of  conduct  pursued 
that  may  directly  or  indirectly  tend  to  diminish  the  trust 
reposed  in  the  physician  employed. 

The  same  circumspection  and  reserve  should  be  observed 
when,  from  motives  of  business  or  friendship,  a  physician  is 
prompted  to  visit  an  individual  who  is  under  the  direction  of 
another  practitioner.  Indeed,  such  visits  should  be  avoided, 
except  under  peculiar  circumstances ;  and  when  they  are 
made,  no  particular  inquiries  should  be  instituted  relative  to 
the  nature  of  the  disease,  or  the  remedies  employed,  but  the 
topics  of  conversation  should  be  as  foreign  to  the  case  as  cir- 
cumstances will  admit." 

Attention  is  particularly  called  to  Professor  Post's  testi- 
mony in  relation  to  cases  occurring  where  extension  and 
counter-extension  was  followed  by  mortification,  necessitat- 
ing amputation. 

Reynolds  v.  Graves.^ 

Smith,  J.  "  The  declaration  in  this  case  contains  two 
counts.  The  first  count,  after  stating  the  retainer  and  em- 
ployment of  the  defendant  as  physician  and  surgeon  (he  the 
said  defendant  holding  himself  out  and  claiming  to  be  such 
physician  and  surgeon),  'to  set,  dress,  take  care  of,  manage, 
and  cure  a  certain  broken  bone  of  the  thigh  of  the  said  plain- 
tiff,' alleges,  '  and  thereupon  it  then  and  there  became  the 
duty  of  the  said  defendant  to  set,  dress,  take  care  of,  and 
manage  the  said  broken  bone  as  such  physician  and  surgeon, 
with  due  and  proper  care,  skill,  and  diligence  ;  and  the  said 
defendant,  in  consideration  thereof,  and  of  certain  large  sums 
of  money  then  and  there  agreed  to  be  paid  to  him  by  the 

1  3  Wis.  416. 


120  CIVIL  MALPEACTICE. 

said  plaintiff  as  a  compensation  for  bis  services  as  such  phy- 
sician and  surgeon,  then  and  there  undertook  and  promised 
to  set,  dress,  take  care  of,  and  manage  as  such  physician  and 
surgeon,  said  broken  bone  in  a  proper,  prudent,  and  skil- 
ful manner,'  &c.  The  second  count  sets  out  the  under- 
taking of  the  plaintiff,  as  being  '  to  set,  dress,  manage,  at- 
tend upon,  and  cure  a  certain  broken  bone  in  a  proper  and 
skilful  manner,'  &c. 

After  evidence  had  been  submitted  on  the  part  of  the 
plaintiff,  the  counsel  for  the  defendant  moved  the  court  to 
nonsuit  the  plaintiff,  on  the  ground,  — 

1st.  Because  the  several  counts  in  the  declaration  set  out 
a  special  agreement  on  the  part  of  the  defendant  to  cure  the 
plaintiff's  limb,  and  no  such  agreement  was  proved  ; 

2d.  Because  there  vras  no  evidence  that  the  defendant  was 
a  physician  and  surgeon  ; 

3d.  Because  the  contract  recited  in  each  count  is  a  special 
contract,  and  not  such  an  one  as  the  law  implies  or  creates, 
and  the  contract  must  be  proved  as  recited  or  alleged ;  and 

4th.  The  allegation  that  the  defendant  held  himself  out  as 
a  physician  and  surgeon,  &c.,  is  a  material  allegation,  and  is 
not  proved  as  recited  and  alleged. 

The  circuit  judge  held,  that  both  counts  in  the  declara- 
tion alleged  a  special  agreement  on  the  part  of  the  defend- 
ant to  '  cure '  the  plaintiff's  broken  bone,  and  as  no  such 
special  contract  was  proved,  nonsuited  the  plaintiff. 

We  are  of  the  opinion  that  the  first  count  in  the  declara- 
tion does  not  set  out  a  special  contract  to  cure  the  plaintiff's 
broken  bone.  It  alleges  that  the  defendant  held  himself  out 
as  a  physician  and  surgeon,  and  as  such  he  was  employed 
and  retained  to  set,  dress,  take  care  of,  manage,  and  cure, 
and  in  consideration  of  the  premises  and  certain  large  sums 
of  money,  &c.,  as  such  physician  and  surgeon,  undertook  and 
promised,  '  to  set,  dress,  take  care  of,  and  manage,  as  such 
physician  and  surgeon,  said  broken  bone  in  a  proper,  pru- 
dent, and  skilful  manner.'  The  gist  of  the  undertaking  here 
is,  not  to  cure  the  plaintiff,  but  to  use  reasonable  profes- 
sional skill  and  attention  to  that  end. 


FRACTURES  OF  FEMUR.  121 

This  count  certainly  does  not  set  out  any  special  agree- 
ment to  cure.  It  is  true  that  by  way  of  inducement  it  is 
stated  that  he  was  employed  and  retained  for  that  purpose, 
as  most  likely  he  or  any  other  professional  surgeon  would 
have  been.  That  was  the  end  in  view.  But  when  the  un- 
dertaking and  promise  of  the  surgeon  is  stated,  the  word 
cure  is  left  out,  and  the  extent  of  his  obligation  as  averred 
is  to  '  set,  dress,  take  care  of,  and  manage  as  such  phj^sician 
and  surgeon,  said  broken  bone  in  a  proper,  prudent,  and  skil- 
ful manner.' 

To  this  extent  the  law  would  hold  him  liable  in  conse- 
quence of  his  holding  himself  out  as  a  physician  and  sur- 
geon. 

We  do  not  think,  therefore,  that  this  count  does  set  out 
a  special  contract  to  cure  the  plaintiff,  but  only  a  contract 
such  as  the  law  implies,  —  to  use  due  and  reasonable  skill  and 
diligence  to  that  end.  The  proof  offered  and  adduced  un- 
der this  count,  that  the  defendant  did  hold  himself  out  as 
such  physician  and  surgeon,  was  sufficient  to  go  to  the  jury. 
He  was  called  'as  such  in  the  first  instance.  He  attended 
and  consulted  with  Dr.  Vilas.  He  was  called  doctor  during 
his  attendance.  He  attended  as  surgeon  seven  weeks,  as- 
suming the  whole  direction  and  treatment  of  the  injured 
limb,  and  went  into  consultation  thereupon  with  other  physi- 
cians and  surgeons. 

These  facts,  though  not  perhaps  direct  proof  of  his  hold- 
ing himself  out  as  a  physician  and  surgeon,  are  sufficient 
to  go  to  the  jury  as  circumstantial  evidence,  and  the  court 
below  erred  in  withholding  them  from  the  jury. 

The  second  count  is  more  analogous  to  the  case  cited  from 
7  Ohio  Rep.  463 ;  and  did  that  count  stand  alone  we  might 
be  inclined  to  hold  as  did  the  court  in  that  instance.  There 
the  declaration  stated  an  absolute  midertahing  and  promise 
on  the  part  of  the  defendant  to  cure  the  plaintiff.  Such, 
certainly,  is  not  the  undertaking  which  the  law  implies  in 
such  cases ;  but  only  that  reasonable  skill,  judgment,  and  dil- 
igence shall  be  bestowed,  for  the  accomplishment  of  the  end 


122  CIVIL  ilALPRACTICE. 

in  view.  Whenever  the  contract  is  laid  more  comprehensive 
than  that  which  the  law  implies,  it  then  becomes  special  and 
must  be  proved  as  laid.  But  the  undertaking  of  the  de- 
fendant as  alleged  in  the  first  count,  is  no  more  nor  less  than 
the  law  implies  in  similar  cases. 

The  jury  might  or  not  have  found  from  the  circumstances 
proved,  that  the  defendant  did  hold  himself  out  as  a  physi- 
cian and  surgeon,  and  as  such  undertook  and  promised  as 
alleged  in  the  declaration.  But  the  proof  tended  that  way, 
and  was  proper  for  the  jury.  For  these  reasons  we  think 
the  court  below  erred  in  nonsuiting  the  plaintiff,  and  the  case 
must  go  back  for  a  new  trial. 

Judgment  reversed  and  new  trial  aivarded.''^ 


FRACTUKES  NEAR  KNEE  AND  IN  LEG.  123 


CHAPTER  VI. 

ALLEGED  MALPRACTICE  IN  FRACTURES  NEAR  KNEE  AND 

IN  LEG. 

Gladwell  V.  Steggall.^ 

(Court  of  Common  Pleas  Eng.,  Michaelmas  Term,  1838.) 

"  The  plaintiff,  an  infant  of  ten  years  old,  by  her  pro- 
chein  ami,  sued  the  defendant  in  case ;  and  the  declaration 
stated,  that  whereas,  before  the  committing  of  the  grievances 
the  plaintiff,  at  the  special  instance  and  request  of  the  de- 
fendant, had  employed  the  defendant  to  bestow  the  care,  dil- 
igence, and  atteiidance  of  him,  the  defendant,  in  the  profes- 
sion and  business  of  a  surgeon  and  apothecary,  in  and  about 
the  endeavoring  to  cure  her,  the  said  plaintiff,  of  a  certain 
complaint  and  disorder  under  which  she  then  labored,  and 
the  defendant  then  accepted  and  entered  upon  such  employ- 
ment as  such  surgeon,  it  then  became  and  was  the  duty  of 
the  defendant  as  such  surgeon  to  use  due  and  proper  care 
and  diligence  in  and  about  the  endeavoring  to  cure  the  plain- 
tiff of  the  said  complaint  and  disorder,  under  which  the 
plaintiff  then  labored,  as  aforesaid.  Breach,  that  the  de- 
fendant conducted  himself  so  unskilfully  that  the  plaintiff 
was  greatly  injured  in  health  and  constitution,  and  under- 
went great  suffering,  &c. 

Pleas,  first,  not  guilty ;  second,  that  the  plaintiff  did  not 
employ  the  defendant,  nor  did  the  defendant  accept  or  enter 
upon  such  employment  in  manner  and  form,  &c. ;  upon  both 
which  pleas  issue  was  joined. 

1  5  Bingham  (N.  C),  733. 


124  CIVIL  MALPEACTICE. 

At  the  trial  before  Vaughax,  J.,  it  appeared  that  the 
plaintiff,  while  working  in  the  fields  with  her  father,  com- 
plained of  a  pain  in  the  knee,  and  went  home ;  her  mother 
sent  for  defendant,  who,  though  a  clergyman,  practised  also 
as  a  medical  man  ;  he  attended  the  plaintiff,  and  his  attend- 
ance was  followed  with  disastrous  consequences  to  her.  He 
had  previously  attended  other  members  of  the  family,  and 
his  bill  in  this  instance  was  made  out  to  the  plaintiff's  father, 
upon  which  it  was  objected  on  the  defendant's  behalf,  that 
the  allegation  that  the  plaintiff  had  employed  him  was  not 
made  out,  and  that  he  was  entitled  to  a  verdict  on  the  second 
plea.  Vaughan,  J.,  reserved  leave  for  the  defendant  to  move 
the  court  on  the  point,  with  leave  for  the  plaintiff  to  move 
to  amend,  if  the  objection  should  be  thought  tenable. 

A  verdict  having  been  found  for  the  plaintiff,  with  .£10 
damages,  — 

Kelly  obtained  a  rule  nisi  to  enter  a  verdict  for  the  de- 
fendant on  the  second  plea,  on  the  objection  taken  at  the 
trial. 

B.  Andrews  ^  Gunning  showed  cause.  This  is  not  an 
action  ex  contractu,  and  there  is  no  statement  in  the  decla- 
ration that  the  defendant  was  retained,  or  that  he  was  to  be 
paid  by  the  plaintiff ;  the  allegation  of  employment,  there- 
fore, is  sufficiently  proved  by  the  fact  that  the  plaintiff  sub- 
mitted herself  to  the  treatment  of  the  defendant.  The  sub- 
stance of  the  issue  was,  that  the  defendant,  being  employed 
to  attend,  injured  the  plaintiff :  it  was  immaterial  by  whom 
he  was  employed  to  attend.  In  Fipinn  v.  Sheppard,  11 
Price,  400,  it  was  held  not  a  ground  of  demurrer  to  a  dec- 
laration in  an  action  on  the  case  by  a  man  and  his  wife 
against  a  surgeon,  for  an  injury  to  the  wife,  by  reason  of  the 
defendant's  improper  and  miskilful  treatment,  that  it  was 
not  stated  in  the  averment  that  the  defendant  was  retained 
and  employed  as  a  surgeon,  for  reward  to  be  to  him  paid, 
hy  whom  he  was  so  retained,  or  hy  whom  he  was  to  be  paid ; 
it  was  held  sufficient  to  aver  that  the  defendant  was  retaijied 
as  a  surgeon  and  entered  upon  the  cure. 


FRACTUEES  KEAR  KNEE  AND  IN  LEG.  125 

Kelly  ^  Byles^  in  support  of  the  rule.  A  contract  is 
stated  on  the  record,  which  is  made  the  foundation  of  the 
defendant's  dut}^ ;  that  contract  was  with  the  plaintiff's 
father,  and  is  a  material  part  of  the  case.  In  Pippin  v. 
Sheppai'd  there  was  an  averment,  not  found  here,  that  the 
defendant  was  a  surgeon,  and  there  was  no  averment  of  any 
contract.  The  declaration  contained  a  bare  statement  of  an 
employment  to  cure,  and  of  a  misfeasance  by  the  defendant  ; 
here,  the  duty  is  alleged  to  arise  out  of  a  contract.  [Tix- 
DAL,  C.  J.  It  is  not  necessary  to  allege  the  duty ;  the  law 
infers  it.]  In  Rex  v.  Everett,  8  B.  &  C.  114  (15  Eng.  Com. 
Law  Rep.  158),  which  was  an  information  for  soliciting  a 
custom-house  officer  to  neglect  his  duty,  Lord  Tendeeden 
says :  '  The  fact  from  which  the  duty  arose  ought  to  have 
been  stated  in  the  count.'  The  fact  which  raises  the  duty 
is  a  material  fact ;  and  in  this  case  a  direct  issue  has  been 
taken  on  it. 

As  to  the  proposed  amendment,  it  can  only  be  allowed 
upon  an  averment  not  material  to  the  action,  and  where  the 
opposite  party  has  not  been  misled.  There  is  no  instance  of 
an  amendment  to  deprive  a  party  of  the  benefit  of  a  verdict 
to  which  he  may  be  entitled  under  a  distinct  issue  raised  by 
the  pleadings. 

TiNDAL,  C.  J.  This  question  comes  before  us  on  the 
second  issue,  which  is  a  traverse  of  an  allegation  in  the  dec- 
laration. The  declaration  is  not  framed  as  in  an  action  on  a 
contract,  but  alleges  a  breach  of  duty  arising  out  of  the  em- 
ployment of  the  defendant  by  the  plaintiff.  I  can  conceive 
that  if  this  had  been  an  action  ex  contractu,  —  that  is,  if  the 
declaration  had  stated  that,  in  consideration  of  being  paid  by 
the  plaintiff,  the  defendant  undertook  to  cure  her,  —  there 
might  have  been  some  difficulty  in  finding  a  verdict  for  the 
plaintiff  on  the  evidence  adduced  at  the  trial.  But  tliis  is  an 
action  ex  delicto.  It  is  clear  that  none  but  the  plaintiff  could 
sue  for  damages  for  personal  injury  done  to  her,  and  the  form 
of  the  traverse  does  not  vary  the  extent  of  the  defendant's 
duty  ;  his  duty  would  be  the  same,  whether  he  was  called  in 


126  CIVIL  MALPRACTICE. 

by  the  father  or  by  the  child.  I  think  the  allegation  in  the 
declaration  here  is  single,  and  that,  upon  this  traverse,  there 
was  evidence  that  the  defendant,  being  sent  for  by  the 
mother  of  the  child,  the  child  allowed  him  to  operate ;  that 
is  evidence  that  she  employed  him,  and  that  he  accepted  the 
employment. 

Vaughan,  J.  The  issue  involves  the  employment,  by 
whom  employed,  and  the  breach ;  by  whom  the  defendant 
was  employed,  I  think,  is  immaterial.  It  seems  to  me,  how- 
ever, that  upon  this  issue  the  employment  was  substantially 
by  the  plaintiff. 

BoSANQUET,  J.  The  argument  of  the  defendant  proceeds 
on  the  supposition  that  this  case  must  be  governed  by  the 
same  rules  as  if  the  action  were  brought  on  a  contract.  This 
action,  however,  is  neither  brought  on  a  contract  nor  founded 
on  one.  It  is  brought  by  a  person  who  has  sustained  a  bodily 
injury,  and  by  the  only  person  who  could  sue  for  it.  The 
allegation  that  she  employed  the  defendant  is  traversed  in 
the  plea  ;  but  it  is  not  necessary  to  consider  whether  the  al- 
legation is  material  or  could  be  the  subject  of  amendment, 
because  there  was  sufficient  evidence  of  an  employment  by 
the  plaintiff,  when  it  was  proved  that  the  defendant  was 
called  in,  and  that  the  plaintiff  assented  to  his  attendance. 

This,  too,  is  an  action  on  the  case,  and  if  more  than  one 
employed  the  defendant,  and  the  person  injured  sues,  that  is 
sufficient  to  sustain  the  action ;  it  would  be  impossible,  here, 
to  say  that  the  plaintiff,  as  well  as  her  father,  did  not  employ 
the  defendant. 

Eeskine,  J.  I  am  of  opinion  the  verdict  has  been  prop- 
erly found  for  the  plaintiff  on  the  second  issue.  It  was  not 
necessa-ry  to  state  in  the  declaration  by  whom  the  defendant 
was  employed ;  and  when  the  second  plea  traverses  the  alle- 
gation that  the  defendant  was  employed  by  the  plaintiff,  the 
substance  of  the  issue  is  that  the  defendant  was  employed 
to  cure  the  plaintiff ;  not  that  he  was  employed  hy  the 
plaintiff.  If  it  were  otherwise,  I  think  the  court  might 
amend  by  striking  out  of  the  declaration  and  plea  by  whom 


FEACTUKES  NEAE  KNEE  AND  IN  LEG.  127 

the  defendant  was  employed ;  that  would  alter  nothing  ma- 
terial to  the  merits  of  the  action. 

I  am  of  opinion,  however,  that  no  amendment  is  neces- 
sary, and  that  this  rule  must  be  Discharged.'''' 


Beatjnbeegek  v.  Cleis.i 

(Dist.  C.  Alleghany  Co.  Pa.,  December  Term,  1864.) 

Veedict,  in  above  suit,  for  plaintiff  for  |2,900.  New 
trial  awarded.     Reasons  not  given. 

Second  trial,  March  term  1865. 

HiSTOEY.  "  A,  F.  Braunherger.,  aged  about  thirty-six  years, 
a  strong,  healthy  man,  of  active,  industrious,  and  temperate 
habits,  enjoying  uninterrupted  good  health,  whilst  attending 
an  engine  on  June  1,  1863,  in  Pittsburg,  was  severely  in- 
jured in  his  left  leg  by  coming  in  contact  with  the  machine. 
A  piston-rod,  about  two  inches  in  diameter,  struck  his  limb 
below  the  knee-joint,  the  posterior  part  of  the  same  being 
supported  by  spme  part  of  the  machinery,  lacerating  skin 
and  muscles,  and  comminuting  the  bones  extensively ;  there 
being  but  one  inch  space  between  the  piston  and  that  part  of 
the  machinery  against  which  the  limb  rested.  Immediately 
after  the  accident  (about  nine  o'clock  A.  M.),  Braunberger 
crawled  from  the  engine  to  the  door  of  the  building,  a  dis- 
tance of  twenty  feet,  where  he  sat  down  upon  the  steps  and 
called  to  a  fellow-workman  to  come  and  carry  him  home. 
Two  persons  assisted  him  to  walk,  and  then  carried  him  into 
a  neighboring  house.  Dr.  George  Cleis  was  immediately 
brought  in,  and  upon  examination  of  the  wound,  pronounced 
it  'only  a  flesh  wound,'  and  assured  the  injured  man  and 
his  friends  that  '  he  would  soon  be  well  and  able  to  work.' 
After  the  bleeding  had  stopped,  the  wound  was  sewed  up, 
and  linen  cloths  and  cold  water  applied. 

The  man  was  then  carried  home,  and  chamomile  tea  or- 
dered as  a  drink.  On  the  second  and  up  to  the  seventh  day, 
1  Medical  and  Surgical  Eep.  vol.  xii.  p.  569  ;  Am.  Law.  Keg.  1864-65,  p.  587. 


128  CIVIL  MALPRACTICE. 

Braunberger  was  rational,  cheerful,  and  able  to  eat,  and 
talked  to  all  who  visited  him,  though  complaining  all  the 
while  of  his  leg,  expressing  his  firm  belief  that  it  was 
broken.  Dr.  Cleis  visited  him  at  least  once  a  day,  and  re- 
peatedly declared  that  it  was  a  flesh  wound,  that  the  bone 
was  not  broken,  and  that  the  man  would  soon  be  well. 
Nothing  appears  to  have  been  done  for  the  limb  beyond  the 
application  of  cloths  saturated  with  cold  water. 

ABSTEACT   OF   EVIDENCE. 

John  MeJirer,  who  nursed  Braunberger,  says  that  he  was 
sensible  and  lively  up  to  the  seventh  day  of  June.  On  that 
day  his  condition  became  a  great  deal  worse,  and  Dr.  C. 
ordered  him  to  apply  warm  water  to  the  limb.  He  states 
that  the  body  of  the  man  became  cold,  and  his  mind  wan- 
dered when  he  dozed  or  slept ;  that  high  fever  set  in  with 
great  thirst,  and  that  his  abdomen  began  to  swell,  the  whole 
limb  having  become  swollen  some  days  before  with  profuse 
and  ojffiensive  discharges  from  the  wound.  He  told  Dr.  C.  that 
they  wanted  another  physician  called  in,  and  that  they  must 
have  one.  On  the  following  day,  Dr.  C.  brought  in  the 
afternoon  Dr.  Kern,  who  upon  examining  the  wound  cut  the 
stitches  and  removed  one  or  two  pieces  of  bone,  pronouncing 
it  a  case  of  compound  comminuted  fracture,  which  absolutely 
required  amputation.  Dr.  C.  at  first  disputed  with  Dr. 
Kern  as  to  the  character  of  the  injury. 

D7\  A.  Gr.  Walter  was  the  only  surgeon  examined  on  behalf 
of  the  plaintiff.  He  did  not  appear  in  obedience  to  the  sub- 
poena, and  was  brought  into  court  by  an  attachment.  He 
testified  as  follows  :  — 

I  was  called  to  see  Braunberger  on  the  9th  of  June, 
about  noon ;  found  him  dangerousl}^  ill  with  a  limb  hope- 
lessly injured  nine  days  before.  The  injury  was  caused  by 
machinery.  There  was  a  large  gangrenous  wound  of  nearly 
the  size  of  my  hand,  below  the  left  knee,  discharging  very 
offensive  matter  in  large  quantity.  The  whole  limb  from 
foot  to  groin  was  enormously  swollen  —  the  result  of  phleg- 


FEACTURES  NEAR  IvNEE  AND  IN  LEG.  129 

monous  erysipelatous  inflammation.  The  limb  laid  upon  its 
outside  witli  knee  bent,  the  tibia  itself  was  curved  below  the 
knee  from  fracture.  The  muscles  below  the  knee  were  lac- 
erated, broken  up,  and  ground  by  force  of  machinery ;  those 
of  the  thigh  were  completely  dissected  by  matter,  which  had 
formed  between  them,  up  to  the  groin,  from  which  it  could 
be  easily  pressed  downward  and  outward.  The  knee-joint 
itself  was  full  of  matter  and  perfectly  disorganized.  The 
head  of  the  tibia  and  its  shaft  to  below  the  middle  was 
broken  longitudinally  and  transversely  into  a  great  many 
pieces ;  the  former  being  completely  ground,  admitting  the 
point  of  all  the  fingers  into  its  cavity.  The  fracture  extended 
into  the  knee-joint  in  three  directions.  Such  an  amount  of 
local  injury  could  not  exist  without  extensive  and  dangerous 
suffering  of  the  system.  I  found  the  patient  delirious,  with 
high  irritative  fever,  flushed  face,  hurried  respiration,  dry 
tongue,  a  small,  feeble,  and  rapid  pulse,  tumultuous  action  of 
the  carotids  and  heart,  and  profuse  clammy  perspiration,  — 
symptoms  which  plainly  indicated  the  violent  and  last  strug- 
gle of  the  system  of  a  powerful  man,  against  one  of  the 
severest  injuries  which  could  have  happened  to  him.  His 
strength  being  exhausted,  it  was  evident  that  speedy  dissolu- 
tion would  follow,  if  no  relief  could  be  afforded  by  removing 
the  limb.  The  limb  should  have  been  amputated  at  once, 
or  soon  after  the  injury  ;  this  is  the  rule  of  practice,  sanc- 
tioned by  every  intelligent  civil  and  military  surgeon  of  all 
nations,  in  injuries  of  this  character,  where  the  soft  parts 
and  bony  structures  are  so  extensively  lacerated  and  crushed, 
the  fracture  extending  into  the  joint,  as  to  preclude  all  hope 
of  reparation.  The  bones  were  not  simply  broken,  they 
were  absolutely  ground ;  the  skin  and  muscles  were  not 
merely  lacerated,  but  bruised,  beaten,  and  deprived  of  all  vi- 
tality by  the  force  of  machinery ;  the  joint  itself  was  opened, 
and  one  of  its  articulatory  surfaces  broken  into  several 
pieces.  The  limb  should  have  been  amputated  at  once, 
when  the  injury  was  fresh,  and  before  the  system  at  large 
had  become  involved,  not  only  sympathizing  with  the  injured 


130  CIVIL  MALPRACTICE. 

parts,  but  violently  resisting  the  inroads  of  a  destructive  pro- 
cess going  forward  in  the  limb,  which  process,  though  local  at 
first,  becomes  destructive  to  the  system  at  large.  Such  being 
the  condition  of  the  patient  when  I  saw  him  on  the  9th  of  June, 
I  felt  sure  that  there  was  no  chance  then  for  amputation  under 
these  circumstances.  If  I  had  amputated  at  that  time,  more 
than  likely  the  man  would  have  died  in  my  hands.  But  he 
could  not  live  with  the  limb ;  this  had  to  be  sacrificed  if  life 
could  be  preserved.  Yet  how  to  preserve  the  latter  ?  This 
was  the  question,  which,  though  of  doubtful  probability,  still 
did  not  justify  inaction  on  the  part  of  the  surgeon.  Consider- 
ing that  the  train  of  constitutional  symptoms  were  indicative 
of  the  highest  general  irritation,  the  result  of  excessive  suppu- 
ration, with  its  consequent  debilitating  and  enervating  influ- 
ences, and  that  well  marked  symptoms  of  pytemia,  or  poison- 
ing of  the  blood,  with  matter  taken  into  the  system  (which 
would  have  precluded  all  hope  of  recovery),  were  still  absent, 
it  was  clearly  my  duty  to  try  to  allay  the  fever,  and  to  sustain 
the  vital  power  by  tonics,  stimulants,  anodynes,  and  nutrients, 
so  as  to  place  the  system  in  a  condition  to  bear  up  under  the 
local  destruction,  while  locally,  about  the  injured  limb,  all 
sources  of  irritation  were  to  be  removed  as  much  as  possible, 
by  placing  it  in  an  easy  supported  condition,  and  giving  free 
exit  to  matter,  before  risking  amputation  as  a  final  resort. 
With  this  view  I  placed  the  limb  upon  a  cushioned  splint, 
had  the  remaining  stitches  removed,  made  a  free  long  inci- 
sion through  the  gangrenous  wounds,  into  the  knee-joint, 
extending  upward  into  the  thigh,  allowing  the  matter  thus 
secreted  to  escape,  and  removed  all  loose  and  detached  pieces 
of  bone,  of  which  there  were  a  great  number.  Frequent 
ablutions  of  the  large  wound,  with  aromatic  and  antiseptic 
lotions  and  poultices,  constituted  the  local  treatment.  This 
local  and  general  treatment  faithfully  persevered  in,  had  the 
effect  of  calming  the  nervous  and  vascular  excitement ;  the 
man  became  again  rational,  frequency  of  pulse  decreased, 
appetite  returned,  the  tongue  became  moist,  tympanitic  dis- 
tension of  abdomen,  and   profuse  perspiration  disappeared, 


FEACTURES   NEAR   KNEE   AND   IN  LEG.  131 

and  the  wound,  before  pale  and  dirty,  became  fresher  look- 
ing, discharging  matter  in  less  quantity,  and  of  a  less  offen- 
sive character.  Continuing  this  medication  up  to  the  sixteenth 
day,  the  patient  gradually  improving,  I  felt  that  the  mo- 
ment had  arrived  when  removal  of  the  limb  might  be 
risked,  —  the  patient  himself  and  his  friends  earnestly  solic- 
iting its  removal.  Further  delay  was  evidently  out  of  the 
question,  as  no  more  improvement  could  be  expected  ;  on  the 
contrary,  it  was  justly  apprehended  that  rapid  sinking  again 
might  set  in,  or  that  pyaemia  might  be  superadded  with  no 
more  chance  of  amputation.  The  patient  and  friends,  being 
fully  apprised  of  the  great  risk  of  amputation  under  these 
circumstances,  and  of  its  more  than  probable  fatal  result, 
still  insisted  on  the  last  trial.  The  limb  was  accordingly 
removed  at  the  upper  third  of  the  femur.  The  patient  died 
the  next  day. 

Sewing  up  the  wound  and  inclosing  the  foreign  matter 
(broken  pieces  of  bone,  coagulated  blood,  and  putrid  pus), 
and  keeping  it  thus  stitched  up  for  nine  days,  was  very  bad 
treatment.  I  knew  Braunberger's  excellent  and  powerful 
constitution  well,  having  attended  him  for  a  compound  com- 
minuted fracture  of  an  arm  some  years  before,  and  believe 
his  life  could  have  been  saved  by  primary  amputation.  The 
limb  should  have  been  amputated  within  a  few  hours,  or  a 
day,  as  soon  as  the  system  had  rallied  from  the  shock. 
Knowing  his  vigor  and  powers  of  endurance,  I  feel  confident 
that  there  was  no  shock  justifying  the  delay  of  amputation. 
Reaction  means  rallying  of  the  system  from  the  shock. 
When  an  injury  befalls  a  person  the  nervous  system  receives 
the  first  impression,  and  this  shows  itself  by  various  symp- 
toms of  greater  or  less  intensity,  in  proportion  to  the  amount 
and  severity  of  the  injury,  and  the  constitutional  powers  of 
the  injured  person.  A  strong  man  will  bear  an  injury  much 
better  than  one  of  weak  vital  forces  and  feeble  constitution. 
We  call  this  '  the  shock.'  It  is  analogous  to  fainting,  or  a 
paralytic  condition  of  the  system  or  part.  Under  the  influ- 
ence of  shock  we  find  the  surface  of  the  body  cold,  partic- 


132  CIVIL   IMALPRACTICE. 

ularly  the  extremities ;  the  skin  is  pale,  lifeless,  bloodless  ; 
pulse  small,  feeble,  and  sometimes  hardly  perceptible  in  beat. 
The  patient  is  generally  very  sick  at  the  stomach,  and  vomits 
or  rejects  everything  offered  him ;  he  is  restless,  he  becomes 
insensible  ;  his  condition  is  approaching  stupor.  Bleeding 
generally  stops,  or  there  is  less  bleeding  in  that  state  than 
otherwise,  unless  large  vessels  are  ruptured ;  the  wound  be- 
comes dry  and  pale.  Diarrhoea  sometimes  sets  in,  and  death 
soon  follows,  say  within  twenty-four  hours,  unless  a  change 
takes  place.  The  effects  of  the  shock,  however,  are  modi- 
fied according  to  the  organ  principally  injured.  Heat  of  sur- 
face of  the  body  returning,  moderate  volume  of  pulse  at  the 
wrist  reappearing,  with  calmness  of  mind  and  body,  and  de- 
sire for  drink  and  food,  &c.,  indicate  ralljdng,  the  first  degree 
of  reaction.  I  would  amputate  in  the  rallying  state  of  the 
system,  and  not  wait  for  full  reaction,  this  being  the  state  of 
dangerous  excitement,  if  not  of  actual  inflammation. 

The  prosecution  here  rested,  when  the  following  testimony 
was  presented  by  the  defendant :  — 

Dr.  Wm.  Kern  testified  that  he  saw  the  patient  on  June  8, 
at  three  o'clock  P.  M.  ;  found  the  limb  inflamed  and  very 
much  swollen ;  made  an  incision,  limb  full  of  dark  humor. 
Limb  above  the  knee  healthy,  the  line  of  demarcation  was 
distinct.  Gave  patient  stimulants — the  case  needed  it. 
Told  Dr.  C.  the  case  was  dangerous,  and  I  thought  we  ought 
to  take  the  leg  off.  The  next  day  Drs.  Cleis,  Brooks,  and 
myself  met  for  consultation.  We  came  to  the  conclusion 
that  the  only  alternative  was  to  take  the  limb  off.  Cleis, 
Brooks,  and  myself  agreed  to  amputate  the  limb  then  on 
that  day.  Think  that  the  patient,  on  the  9th,  while  Drs. 
B.  and  C.  and  myself  were  there,  was  in  a  condition  to  have 
the  limb  amputated.  Some  of  Braunberger's  friends,  how- 
ever, expressed  an  earnest  desire  to  have  Dr.  A.  G.  Walter 
consulted,  whereupon  Drs.  Cleis,  Brooks,  and  myself  consid- 
ered ourselves  dismissed,  retired  from  the  case. 

Cross-examination.  Cannot  tell  whether  the  case  was 
treated  properly  by  Dr.  Cleis,  or  whether  or  not  the  sewing 
up  of  such  a  wound  was  proper  treatment. 


FRACTURES  NEAR  KNEE  AND  IN  LEG.  133 

On  tlie  first  trial  Dr.  Kern  gave  the  following  testimony  : 
Found  leg  in  a  putrid  state  ;  effluvia  were  so  offensive  that 
I  had  to  put  a  handkerchief  over  my  nose.  On  meeting 
Dr.  Brooks  next  morning  in  the  case,  Dr.  B.  at  first  thought 
that  there  was  no  fracture,  but  came  to  the  conclusion  that  I 
was  right  after  examining  the  wound  with  the  finger.  We 
both  insisted  on  immediate  amputation  as  the  only  chance  to 
save  the  patient,  who  Avas  very  weak,  and  the  wound  suppu- 
rating profusely.  Would  not  amputate  when  the  man  was 
bleeding  very  much,  would  first  arrest  the  hemorrhage.  A 
fracture  is  called  compound  when  the  bones  protrude  through 
the  muscles,  as  in  this  case.  There  is  a  possibility  that  this 
fracture  could  have  been  overlooked  and  mistaken  for  some- 
thing else.  Do  not  recollect  whether  the  wound  had  been 
stitched  or  not.  Patient  would  have  survived  the  amputa- 
tion ;  do  not  know  that  it  would  have  saved  his  life.  Ampu- 
tation should  have  taken  place  on  the  9th  ;  it  was  wrong  to 
postpone  it  to  the  16th  of  June. 

Dr.  J.  Brooks  testified  that  he  saw  Braunberger  with  Drs. 
Cleis  and  Keri'i.  The  man's  knee  and  leg  were  broken. 
Limb  much  swollen.  Pulse  feeble ;  swelling  from  feebleness 
and  inertia,  —  a  kind  of  dropsical  inflammation.  Amputa- 
tion (on  the  9th)  would  have  availed  nothing.  I  did  not 
agree  to  amputate.  I  said  to  the  doctors  (Cleis  and  Kern) 
that  amputation  would  avail  nothing.  In  my  judgment  the 
man  never  had  rallied,  although  I  never  saw  the  man  but 
once,  and  that  was  on  the  ninth  day  after  the  injury.  I  could 
tell  by  looking  at  him  that  his  system  had  never  rallied. 
I  am  sure  there  was  not  reaction  in  that  man  from  the  be- 
ginning. There  was  no  line  of  demarcation.  Amputation 
would  have  done  him  no  good ;  it  would  have  only  hastened 
his  death. 

On  the  first  trial  he  testified  as  follows :  Braunberger 
was  in  a  dead  state,  the  limb  was  sloughing,  or  in  a  state  of 
mortification.  The  leg  and  thigh  were  a  great  deal  swollen, 
and  there  was  a  dropsical  effusion.  The  part  was  dead. 
The  conclusion  we  came  to  (on  the  9th)  was,  that  the  man 


134  CIVIL  MALPEACTICE. 

would  die.  We  did  not  conclude  that  amputation  should 
take  place.  I  thought  then,  and  yet,  that  no  good  could 
have  resulted  from  amputation. 

A  witness  for  the  defence  testified  that  Braunberger  com- 
plained (after  some  days)  of  pain  in  his  back. 

Dr.  Greo.  McCooh  testified  that  amputation  should  never 
be  performed  till  reaction  had  taken  place.  That  he  never 
saw  Braunberger,  but  he  was  of  the  opinion  that  reaction 
had  never  taken  place,  because  of  the  alleged  pain  in  the 
back ;  and  that  amputation  of  the  limb  could  not  have  been 
safely  performed  at  any  time.  Pain  in  the  back  is  one  of 
the  worst  indications  of  shock,  and  I  never  knew  a  man  re- 
cover who  complained  of  that.  The  pain  in  the  back  goes 
to  show  the  effect  of  the  shock  —  extreme  shock.  I  would 
despair  of  restoring  a  man  in  Braunberger's  condition  on 
the  9th  of  June,  as  found  and  described  by  Dr.  Walter.  It 
would  be  my  duty  to  assist  nature  in  effecting  a  reaction. 
It  was  bad  surgery  to  sew  up  the  wound. 

On  the  first  trial  he  testified  as  follows :  The  effluvia 
mentioned  by  Dr.  Kern  as  existing  June  8,  indicated  that 
mortification  had  commenced.  I  would  have  amputated  the 
next  day  after  the  accident.  If  amputation  had  taken 
place  the  next  day  (June  2),  it  is  almost  certain  that  the 
man  would  have  lived.  I  would  not  have  amputated  the 
limb  on  the  16th.  If  I  had  amputated  at  all,  I  would  have 
done  so  at  once  on  the  9th. 

The  theory  of  the  defence  was  that  reaction  never  oc- 
curred, or  if  it  did  it  was  only  on  the  9th  of  June,  from  the 
stimulants  administered  by  Dr.  Kern  on  the  8th,  and  that 
the  calling  in  of  Dr.  Walter  prevented  the  proposed  amputa- 
tion on  the  9th. 

His  Honor  Judge  Williams  charged  the  jury  as  fol- 
lows :  — 

This  is  an  action  brought  by  Catherine  Braunberger 
against  Dr.  George  Cleis,  to  recover  in  her  own  right  and  in 
right  of  her  three  minor  children  damages  for  the  death  of 
her  husband,  Albert  Frederick  Braunberger,  occasioned,  as 


FRACTUEES  KEAR  KNEE  AXD  IN  LEG.  135 

she  alleges,  by  tlie  negligence  and  unskilfulness  of  the  de- 
fendant, who  was  employed  as  phj^sician  and  surgeon  to 
treat  him  for  an  injury  which  he  had  received  in  his  left 
leg. 

It  appears  from  the  evidence  that  the  plaintiff's  husband, 
who  was  about  thirty-two  years  of  age,  in  good  health,  and 
of  a  sound  and  vigorous  constitution,  and  was  employed  in 
Kirchner's  tannery,  having  charge  of  the  engine  therein 
while  so  employed,  on  the  morning  of  the  1st  of  June, 
1863,  received  an  injury  in  some  way  not  explained,  by 
which  the  bones  of  his  left  leg  below  the  knee  were  crushed 
and  broken  in  pieces,  the  fractures  of  the  main  bone  extend- 
ing into  the  knee-joint.  Soon  after  the  accident  he  was 
carried  into  the  house  of  Kirchner,  and  the  defendant  was 
sent  for  to  attend  him.  When  he  came  he  found  the  wound 
bleeding,  and  having  first  partly  stopped  the  bleeding,  he 
examined  the  wound  with  a  probe,  and  said  that  the  leg  was 
not  broken,  but  that  it  was  a  mere  flesh  wound  of  which  he 
would  be  well  in  a  few  days. 

He  then  stitched  up  the  wound,  which  was  three  or  four 
inches  in  length,  applied  some  liniment  to  it,  and  put  upon 
it  a  wet  cloth  or  bandage,  giving  directions  that  it  should  be 
kept  wet  by  sponging  from  time  to  time  with  cold  water. 
He  then  left  for  the  purpose  of  visiting  a  patient  at  some 
distance,  having  given  orders  that  if  the  wound  should  com- 
mence bleeding,  to  call  another  ph^-sician  without  waiting  for 
his  return.  Some  time  after  he  left,  the  wound  commenced 
to  bleed,  and,  without  sending  for  another  physician,  the 
bleeding  was  checked,  though  not  entirely  stopped,  by  the 
application  of  cotton  saturated  with  ink.  The  defendant  re- 
turned in  an  hour  or  two,  and  found  the  wound  with  the  cot- 
ton on  it,  still  bleeding  a  little.  He  gave  orders  to  have  the 
patient  removed  to  his  own  home,  and  said  he  would  attend 
him  there.  He  was  accordingly  removed  to  his  own  house, 
where  he  was  attended  by  the  defendant,  who  visited  him 
twice  daily,  doing  nothing  for  the  wound  itself,  except  to  put 
wet  cloths  or  loose  bandages  on  it,  and  directing  that  they 


136  CIVIL  MALPEACTICE. 

should  be  kept  wet  by  being  sponged  witli  cold  water,  until 
tlie  seventh  day  after  the  accident,  when  he  ordered  the  cloth 
to  be  wet  with  warm  instead  of  cold  water.  On  that  day  he 
was  told  by  the  witness  who  nursed  the  deceased,  if  the  jury 
believe  the  evidence,  that  if  he  did  not  call  another  physician 
to  consult  with  him,  the  "family  would,  because  the  deceased 
was  getting  weaker,  —  his  body  was  growing  cold,  and  there 
was  a  cold  and  clammy  sweat  on  his  face.  According  to  the 
testimony  of  the  witness,  the  deceased,  whose  appetite  was 
at  first  very  good,  had  by  this  time  little  or  no  appetite  for 
food  of  any  kind,  and  had  become  very  weak,  and  com- 
plained on  several  occasions  of  pain  in  his  back.  The  next 
day  (the  eighth)  the  defendant  brought  Dr.  Kern  with  him. 
Dr.  Kern  opened  the  wound  and  found  that  suppuration  had 
taken  place,  and  the  wound  filled  with  gangrenous  matter  so 
offensive  to  the  smell  that  the  attendant  could  not  stay  in 
the  room.  Having  removed  the  gangrenous  and  offensive 
matter,  he  examined  the  wound,  and  found  that  the  leg  was 
broken,  and  informed  the  defendant  of  the  fact,  and  that 
there  was  no  possibility  of  saving  the  patient's  life  except  by 
amputation.  He  then  prescribed  some  stimulating  medicine 
in  order  to  put  the  patient  into  a  fit  condition  for  the  opera- 
tion. The  next  day,  the  ninth,  the  defendant  and  Dr.  Kern 
called  in  Dr.  Brooks  to  advise  with,  and  assist  them  in  per- 
forming the  operation.  Upon  examining  the  condition  of 
the  patient,  they,  or  the  majority  of  them  (for,  in  respect  to 
this  fact,  there  is  a  direct  conflict  in  the  testimony  of  the 
consulting  physicians),  advised  immediate  amputation  as  the 
only  possible  chance  of  saving  the  life  of  the  patient.  Dr. 
Kern  is  still  of  the  opinion  that  he  was  in  a  fit  condition,  and 
that  if  his  leg  had  been  taken  off,  there  was  a  reasonable  pros- 
pect of  his  recovery ;  while  Dr.  Brooks  is  of  the  opinion  that 
he  was  not  in  a  fit  condition  to  undergo  the  operation,  and 
that  amputation  would  have  been  worse  than  useless  ;  that  it 
would  have  hastened  his  dissolution.  The  result  of  the  con- 
sultation was  announced  to  the  deceased  and  his  friends,  and 
they  requested  that  if  his  leg  was  to  be  taken  oft',  that  Dr. 


FRACTURES  NEAR  KXEE  AXD  IN  LEG.  137 

Walter  should  be  called  in  before  it  was  done,  and  they  ac- 
cordingly sent  for  him.  The  three  physicians  then  said,  that 
as  Dr.  Walter  had  been  sent  for,  they  would  have  nothing 
more  to  do  with  the  case,  —  that  they  considered  themselves 
dismissed,  and  accordingly  they  left.  When  Dr.  Walter 
came,  he  found  the  patient,  as  he  has  testified,  in  a  condition 
utterly  unfit  to  undergo  amputation.  It  is  not  necessary  to 
repeat  the  description  which  he  gave  of  his  condition,  the 
jury  will  recollect  it.  He  says  it  would  have  been  madness 
to  amputate  his  leg  while  he  was  in  that  condition,  that  he 
would  have  probably  died  in  his  hands.  He  commenced  a 
course  of  treatment  to  bring  about,  if  possible^  such  a  con- 
dition of  the  system  as  would  enable  him  to  undergo  the 
operation,  and  on  the  16th  of  June,  when  the  most  favorable 
moment  that  he  could  expect  had  arrived  for  the  perform- 
ance of  the  operation,  with  the  hope,  and  the  only  hope  of 
saving  his  life  that  he  had,  he  amputated  his  leg.  But  he 
was  not  able  to  survive  the  shock,  and  died  the  next  day. 
These  are  the  main  facts  in  the  history  of  this  case. 

The  plaintiff  alleges  that  her  husband's  death  was  occa- 
sioned by  the  negligence  and  unskilfulness  of  the  defendant, 
and  that  he  is  responsible  for  the  damages  which  she  and  her 
children  have  sustained  in  consequence  of  his  death. 

The  principles  of  law  applicable  to  this  case  are  simple 
and  easily  understood.  When  one  is  employed  as  a  physi- 
cian or  surgeon,  the  law  implies  an  undertaking  on  his  part, 
that  he  will  use  a  reasonable  degree  of  care  and  skill  in  the 
treatment  of  his  patient,  or  in  the  performance  of  the  pro- 
fessional duty  which  he  undertakes  ;  and  in  judging  of  this 
degree  of  skill,  regard  is  to  be  had  to  the  advanced  state  of 
the  profession  at  the  time.  This  is  the  implied  duty  of  the 
medical  or  surgical  practitioner,  and  he  is  responsible  for  any 
injury  which  may  be  occasioned  by  his  want  of  reasonable 
care  and  skill  in  the  discharge  of  the  particular  duty  which 
he  undertakes,  and  for  which  he  may  have  been  retained. 
In  this  respect  the  law  exacts  no  more  of  medical  practition- 
ers or  surgeons  than  it  does  of  those  engaged  in  any  other 


138  CIVIL  MALPEACTICE. 

profession  or  calling,  where  care  and  skill  are  requisite  for 
the  successful  accomplishment  of  the  duties  incident  and  ap- 
propriate to  such  profession  or  calling,  whatever  it  may  be. 

The  law  does  not  imply  an  undertaking  on  the  part  of 
medical  or  surgical  practitioners,  any  more  than  it  does  on 
the  part  of  those  engaged  in  other  professions  or  callings, 
that  they  will  use  the  highest  degree  of  care  and  skill  at- 
tainable or  known  in  the  profession.  If  it  did,  but  few 
would  be  competent  to  practise  the  medical,  surgical,  or  any 
other  profession.  For  but  few,  comparatively,  possess  the 
requisite  natural  endowments,  the  industry,  energy,  and  per- 
severance, the  opportunities  for  study  and  improvement,  and 
the  experience  necessary  and  indispensable  for  the  attain- 
ment of  the  highest  degree  of  professional  skill. 

The  law,  therefore,  very  properly  requires  no  more  of  the 
medical  and  surgical  practitioner  than  the  use  of  a  reasona- 
ble degree  of  care  and  skill  in  the  discharge  of  the  duty  or 
office  he  may  be  called  upon  to  perform  ;  but  rigorously  ex- 
acts this  degree  of  care  and  skill,  and  it  implies  an  under- 
taking on  his  part  to  use  such  reasonable  care  and  skill  in 
the  discharge  of  his  professional  duty ;  it  renders  him  re- 
sponsible for  any  injury  which  may  result  from  the  want 
thereof.  Reasonable  care  and  skill  is  a  phrase  not  of  abso- 
lute but  of  relative  import  or  signification.  What  may  or 
may  not  be  reasonable  care  and  skill  depends  very  much 
upon  the  nature  of  the  duty  to  be  performed  or  the  thing  to 
be  done,  and  the  attendant  circumstances.  The  more  diffi- 
cult the  duty  or  operation,  the  greater  is  the  degree  of  care 
and  skill  requisite  for  its  successful  accomplishment.  And  in 
the  performance  of  very  difficult  and  dangerous  operations 
in  surgery,  the  surgical  practitioner  is  required  to  possess 
and  employ  a  higher  degree  of  care  and  skill  than  would  be 
necessary  for  the  performance  of  operations  less  difficult  or 
dangerous.  But  he  is  only  required  to  employ  a  reasonable 
degree  of  care  and  skill  in  these  operations,  and  in  the  pre- 
vious and  subsequent  treatment  of  the  case,  —  that  is  to  say, 
such  a  degree  of  care  and  skill  as  men  of  ordinary  prudence, 


PKACTURES   NEAR   KNEE  AND   IN  LEG.  139 

learning,  and  skill  in  this  department  or  profession  usually 
possess  and  employ  ;  and  if  he  does  not  he  is  responsible  for 
the  injmy  occasioned  by  his  negligence  or  unskilfulness  in 
this  respect. 

By  the  common  law,  no  action  could  be  maintained  by  the 
widow  or  other  relation  of  a  deceased  person  to  recover 
damages  for  any  injury  resulting  in  death,  when  occasioned 
by  unlawful  violence  or  negligence.  If  the  injury  thus 
occasioned  did  not  result  in  death,  the  sufferer  might  re- 
cover damages  therefor ;  but  if  death  was  the  result,  the 
common  law  gave  no  actions  for  the  recovery  of  damages  to 
the  relatives  or  personal  representatives  of  the  deceased. 
This  defect  in  the  law  was  remedied  by  the  Legislature  of 
this  State,  by  an  act  passed  the  15th  of  April,  1851,  the  19th 
section  of  which  is  in  these  words  :  — 

'  Whenever  death  shall  be  occasioned  by  unlawful  vio- 
lence or  negligence,  and  no  suit  for  damages  be  brought  by 
the  party  injured  during  his  or  her  life,  the  widow  of  any 
such  deceased,  or,  if  there  be  no  widow,  the  personal  repre- 
sentatives, may  maintain  an  action  for,  and  recover  for  the 
death  thus  occasioned.' 

By  a  supplement  to  this  act,  approved  the  26th  April, 
1855,  it  is  declared,  that  '  the  persons  entitled  to  recover 
damages  for  any  injury  causing  death  shall  be  husband, 
widow,  children,  or  parents  of  deceased,  and  no  other  rela- 
tive ;  and  the  sum  'recovered  shall  go  to  them  in  the  propor- 
tion they  would  take  his  or  her  personal  estate  in  the  case  of 
intestacy,  and  that  without  liability  to  creditors.' 

By  '  unlawful  violence,'  as  used  in  the  act  of  1851,  is 
meant  the  improper,  and,  therefore,  unlawful  use  or  employ- 
ment of  physical  force,  however  ai3plied.  It  is  the  abuse  of 
force,  and  implies  a  positive  act.  '  Negligence '  is  the  omis- 
sion of  something  that  ought  to  be  done.  It  is  negative  in 
its  character.  It  is  not  doing  what  ought  to  be  done.  It  is 
omitting  to  do  something  which  reason,  prudence,  and  skill 
would  suggest  as  proper  and  necessary  to  be  done,  under  the 
circumstances  of  the  case.     And  whenever  death  happens 


140  CIVIL  MALPEACTICE. 

from  either  of  these  causes,  namely,  '  unlawful  violence  or 
negligence,'  action  may  be  maintained  under  the  statute, 
and  damages  recovered  therefor. 

It  is  contended  by  defendant's  counsel  that  mere  malprac- 
tice by  a  physician  or  surgeon  is  not  such  unlawful  violence 
or  negligence  as  is  contemplated  by  the  act,  and  that  for 
this  reason  there  can  be  no  recovery  in  this  action.  But 
the  act,  both  in  its  letter  and  spirit,  is  in  my  opinion  suf- 
ficiently comprehensive  to  embrace  the  case  of  death  result- 
ing from  malpractice,  whenever  occasioned  by  unlawful  vio- 
lence or  negligence.  In  all  cases  in  which  by  the  common 
law  an  action  could  be  maintained  and  damages  recovered 
for  an  injury,  not  resulting  in  death,  occasioned  by  mal- 
practice, an  action  on  the  statute  may  now  be  maintained, 
if  death  resulted  therefrom,  when  such  malpractice  consists 
in  '  unlawful  violence  or  negligence.'  It  cannot  be  doubted 
that  malpractice  on  the  part  of  a  physician  or  surgeon  may 
consist  in  unlawful  violence,  that  is  to  say,  the  improper  and 
unlawful  use  of  physical  force,  as  well  as  in  negligence  or 
the  omission  to  use  the  appropriate  and  indispensable  means 
for  the  recovery  of  the  patient  or  the  preservation  of  his 
life.  And  in  either  case,  whether  by  unlawful  violence  or 
negligence,  if  death  be  the  result,  he  is  responsible  therefor. 
But  the  fact  that  the  physician  or  surgeon  may  have  been 
guilty  of  malpractice,  however  gross  in  its  character,  will  not 
render  him  responsible  in  an  action  on  the  statute,  at  the 
suit  of  the  widow  or  other  relatives,  unless  the  death  of  the 
deceased  was  occasioned  by  such  malpractice.  If  the  de- 
ceased might  have  survived  and  recovered  from  the  injury 
occasioned  by  the  unskiKulness  or  negligence  of  the  phy- 
sician or  surgeon,  under  proper  treatment  and  by  the  use  of 
the  appropriate  and  necessary  means,  after  the  discharge  of 
such  physician  or  surgeon  for  incompetency  or  unskilfulness, 
or  if  the  death  is  fairly  attributable  to,  or  actually  resulted 
from,  some  other  causes,  there  can  be  no  recovery  in  an  action 
on  this  statute.  There  may  be  no  doubt  or  qviestion  as  to  the 
malpractice  of  the  physician  or  surgeon,  but  unless  the  death 


FRACTUKES  NEAE  KNEE  AND  IN  LEG.       141 

of  the  deceased  was  the  result  thereof,  his  widow  and  chil- 
dren are  not  entitled  to  maintain  an  action  and  recover  dam- 
ages therefor.  But  if  the  death  was  occasioned  by  mal- 
practice in  either  of  the  modes  suggested,  namely,  by  the 
improper  application  of  physical  force,  or,  in  the  language 
of  the  statute,  by  '  unlawful  violence,'  or  by  the  omission  of 
the  appropriate  means,  that  is,  by  '  negligence,'  the  statute 
gives  a  remed}^,  and  damages  may  be  recovered  therefor  by 
the  widow  and  children. 

It  will  be  the  duty  of  the  jury  to  apply  these  principles  to 
the  evidence  in  the  case.  There  is  no  evidence  that  the  de- 
fendant was  guilty  of  any  '  unlawful  violence '  in  the  treat- 
ment of  the  deceased,  which  caused  his  death.  Whether  his 
death  was  occasioned  by  the  negligence  and  unskilfulness  of 
the  defendant,  is  a  question  of  fact  for  the  determination  of 
the  jury.  The  responsibility  of  determining  this  question  is 
upon  them,  and  not  upon  the  court. 

The  plaintiff's  counsel  contend  that  the  death  of  plaintiff's 
husband  was  caused  by  the  negligence  and  unskilfulness  of 
the  defendant, 'in  not  ascertaining  the  nature  and  extent  of 
the  injury,  and  making  use  of  the  appropriate  means  for  the 
treatment  of  the  same,  and  for  the  preservation  of  his  life. 

They  allege  that  the  defendant's  negligence  and  unskilful- 
ness are  shown  by  the  fact  that  he  mistook  the  injured  con- 
dition of  his  leg  —  crushed,  fractured,  and  broken  to  pieces, 
as  it  was  —  for  a  mere  flesh  wound  ;  and  that  this  radical 
error,  in  regard  to  the  nature  of  the  wound,  and  its  conse- 
quent treatment  as  a  mere  flesh  wound,  was  the  grossest  mal- 
practice on  the  part  of  the  defendant,  and  the  cause  of  the 
death  of  plaintiff's  husband.  The  defendant's  counsel  do  not 
deny  that  their  client  was  mistaken  in  regard  to  the  nature 
and  extent  of  the  injury,  and  in  the  treatment  appropriate 
thereto ;  bat  they  contend  that  this  mistake  as  to  the  nature 
of  the  injury  and  its  appropriate  treatment,  was  not  the 
cause  of  his  death.  If  the  jury  believe  the  evidence,  there 
can  be  no  doubt  that  the  defendant  failed  to  discover  the 
nature  and  extent  of  the  injury,  and  that  he  might  and  ought 


142  CIVIL  MALPRACTICE. 

to  have  ascertained  this  if  he  had  employed  ordinary  and 
reasonable  care  and  skill  in  examination  of  the  wound,  and 
that  his  treatment  of  the  injury  as  a  mere  flesh  wound  was 
not  the  proper  and  appropriate  treatment  of  a  leg  broken 
and  ground  to  pieces,  as  this  leg  was,  with  the  fractures  ex- 
tending into  the  knee-joint.  While  quackery  and  empiri- 
cism ought  not  to  receive  any  countenance  from  the  court  and 
jmy  in  any  profession,  and  least  of  all  in  the  medical  and 
surgical,  where  the  consequences  are  serious,  and  often  fatal, 
yet  the  court  and  jury,  in  dealing  with  cases  of  manifest 
malpractice,  ought  to  be  careful  not  to  impute  or  attribute  to 
such  malpractice  consequences  which  do  not  legitimately  and 
properly  result  from  it.  Did,  then,  the  mistake  which  the 
defendant  made  in  regard  to  the  nature  and  extent  of  the  in- 
jury, and  his  consequent  mistreatment  of  the  case,  cause  the 
death  of  the  plaintiff's  husband  ?  This  is  a  question  of  fact 
for  the  determination  of  the  jury,  under  all  the  evidence  in 
the  cause.  It  is  often,  perhaps  always,  a  difficult  thing  to 
ascertain  and  determine  the  consequences  necessarily  and  act- 
ually resulting  from  malpractice.  It  is  an  inquiry  requiring 
more  knowledge,  scientific  skill,  and  experience  in  such  mat- 
ters than  men  ordinarily  possess ;  and  therefore  the  law  al- 
lows experts,  that  is,  persons  learned  and  skilled  in  such 
matters  and  pursuits,  to  be  called  in  to  aid  the  court  and  jury 
in  the  investigation ;  and  great  weight  is  to  be  attached  to 
their  opinions. 

Where  they  agree  in  opinion  upon  a  given  hypothesis  or 
state  of  facts,  their  opinion  should  be  regarded  as  conclusive 
evidence  thereon  ;  but  it  is  always  the  duty  of  the  jury  to 
determine  whether  the  given  state  of  facts,  or  the  supposed 
hypothesis,  exists  or  is  established  by  the  evidence. 

While  the  physicians  and  surgeons,  who  have  been  ex- 
amined in  this  case,  differ  in  some  respects,  they  all  agree  in 
the  following  particulars  :  — 

1st.  That  there  was  no  possible  chance  of  saving  the  life 
of  the  plaintiff's  husband,  except  in  amputating  the  bi'oken 
leg,  because  the  fracture  extended  into  the  knee-joint.   Tbey 


.     FRACTURES  NEAR  KNEE  AND  IN  LEG.  143 

all  agree  that  there  was  no  other  possible  way  of  saving  his 
life. 

2d.  They  all  agree  that  amputation  is  not  to  be  performed 
unless  the  system  of  the  patient  is  in  a  fit  condition ;  that  it 
■would  be  unpardonable  to  amputate  when  the  system  is  in 
a  state  of  shock ;  that  where  the  result  of  an  injury  is  a  shock 
of  the  whole  nervous  and  vital  system  that  it  would  be  death 
to  amputate  in  such  a  condition. 

3d.  That  in  case  of  shock,  amputation  should  be  performed 
as  soon  as  the"  system  recovered  from  the  shock ;  in  other 
words,  as  soon  as  the  system  has  rallied,  and  reaction  has 
taken  place. 

4th.  That  in  case  of  shock,  if  the  system  does  not  rally, 
or  if  reaction  does  not  begin  to  take  place,  it  is  the  duty  of 
the  surgeon  to  make  use  of  proper  means  to  bring  on  a  reac- 
tion, by  giving  stimulating  remedies,  and  endeavoring  to 
produce  heat  in  the  system  by  artificial  means. 

These  are  well  established  principles  of  surgery  in  regard 
to  which  there  is  no  dispute.  The  intelligent  and  skilful 
surgeon  should  always  act  in  conformity  with  these  principles 
in  determining  whether  amputation  should  or  should  not  be 
performed  ;  and  in  determining  the  probable  results  or  con- 
sequences to  the  patient,  if  the  operation  is  or  is  not  per- 
formed. Bearing  in  mind  the  cardinal  principles  of  the  sci- 
ence, the  jury  will  determine  :  — 

1st.  Whether  the  injury  to  the  plaintiff's  husband  resulted 
in  that  condition,  or  state  of  the  system,  called  shock,  and 
whether  the  nervous  and  vital  system  was  so  shocked  as  to 
render  amputation  of  his  leg  not  only  dangerous  but  proba- 
bly fatal  ?  Or  whether  the  shock  of  the  system  was  so  slight 
that  the  operation  might  have  been  performed  with  a  reason- 
able prospect  of  saving  his  life  ? 

2d.  If  the  shock  was  so  great  that  death  would  have  been 
the  result  of  amputation  while  the  system  was  in  that  con- 
dition, was  there  such  a  rallying  or  reaction  of  the  system 
that  amputation  might  have  been  safely  performed  with  a 
reasonable  prospect  of  saving  the  patient's  life  ? 


144  CIVIL  MALPRACTICE. 

3cl.  If  reaction  did  not  take  place,  might  it  in  all  human 
probability  have  been  produced  by  the  use  of  the  appropriate 
means  or  remedies  ? 

4h.  Was  the  plaintiff's  husband  in  a  fit  condition  for  the 
amputation  of  his  leg  at  the  time  of  the  consultation  between 
the  defendant  and  Drs.  Kern  and  Brooks  ;  and  if  they  had 
then  been  permitted  to  perform  the  operation,  is  it  probable 
that  the  life  of  the  plaintiff's  husband  would  have  been 
saved  ? 

If  the  jury  find  that  the  deceased  was  in  a  fit  condition  to 
have  his  leg  amputated  with  safety  to  his  life  soon  after  the 
injury ;  that  his  system  was  not  in  a  state  of  shock,  or,  if 
it  was,  that  it  rallied  and  recovered  therefrom,  so  that  am- 
putation might  have  been  safely  performed  while  the  defend- 
ant had  charge  of  the  case,  then  it  was  his  duty  to  amputate  ; 
and  if  amputation  could  not  have  been  safely  performed  at 
any  time  after  he  ceased  to  have  charge  of  the  case,  and  if 
the  death  of  the  deceased  was  occasioned  by  the  neglect  of 
the  defendant  to  perform  the  operation  at  the  proper  time, 
he  is  responsible  for  the  consequences  of  his  negligence  and 
unskilfulness,  and  this  action  may  be  maintained  for  the  re- 
covery of  such  damages  as  the  widow  and  children  have  sus- 
tained thereby. 

But  if  the  deceased  was  so  prostrated  by  the  injury  he  re- 
ceived —  if  he  was  in  such  a  state  of  shock  —  that  amputa- 
tion could  not  be  safely  performed  ;  if  his  system  did  not 
rally,  or  might  not  have  rallied  so  that  his  leg  could  be  am- 
putated with  safety  to  his  life ;  if  he  would  probably  have 
died  whether  his  leg  was  amputated  or  not,  then  there  can 
be  no  recovery  against  the  defendant  in  this  action,  although 
he  may  have  grossly  mistaken  the  nature  and  extent  of  the 
injury  and  treatment  appropriate  thereto.  Nor  can  there 
be  any  recovery  against  the  defendant,  if  amputation  might 
have  been  safely  performed  at  any  time  after  the  defendant 
ceased  to  attend  the  deceased,  and  another  surgeon  had  been 
called  to  take  charge  of  the  case.  The  defendant  is  not  re- 
sponsible for  any  neglect  or  omission  of  duty  after  his  con- 


EKACTURES   KEAR   KNEE   AND   IN   LEG.  145 

nection  with  the  case  had  ceased.  If  the  Kfe  of  the  deceased 
might  have  been  saved  if  his  leg  had  been  amputated  on  the 
day  that  Dr.  Walter  was  called  to  attend  him,  the  defendant 
is  not  responsible  in  damages  for  his  death.  The  jury  will 
determine  what  are  the  facts  from  all  the  evidence  in  the 
case. 

If  the  jury  find  for  the  plaintiff,  they  will  assess  such  dam- 
ages as  will  compensate  the  widow  and  children  for  the  pe- 
cuniaiy  loss  they  have  sustained  by  the  death  of  the  deceased. 
The  jury  are  not  required  to  estimate  the  value  of  his  life. 
If  they  were,  dollars  and  cents  would  be  a  poor  standard  with 
which  to  measure  the  life  of  a  human  being.  They  are  only 
required  to  give  damages  for  his  death.  The  widow  and 
children  of  the  deceased  are  not  entitled  to  recover  anything 
by  way  of  solace  for  their  wounded  feelings  ;  they  are  only 
entitled  to  recover  damages  for  the  pecuniary  loss  they  have 
sustained  in  consequence  of  his  death. 

The  damages  ought  not  to  be  extravagant  or  unreasonable. 
If  the  defendant  had  been  actuated  by  malice,  the  jury  might 
give  vindictive  damages.  But  the  defendant  was  not  actu- 
ated by  malice.  If  he  caused  the  death  of  the  deceased  it 
was  not  intentional,  but  the  result  of  ignorance  and  unskil- 
fulness,  and  therefore  the  jury  should  be  merciful  while  they 
do  justice. 

The  points  submitted  by  defendant's  counsel  are  affirmed. 

The  jury  found  a  verdict  for  plaintiff  for  $3,250." 

ClossoN"  v.  LoOMis.i 

History.  "  Mrs.  Closson,  age  fifty-seven,  fell  down  cellar 
stairs.  Sent  for  Dr.  Campbell,  who  had  for  forty  years 
been  her  medical  attendant.  He  was  unable  to  go,  but  sent 
word  he  would  see  her  the  next  morning.  She  being  in  great 
pain  sent  for  Dr.  Loomis,  of  Putney,  Vt.,  who  came.  Dr. 
Campbell  called  next  morning,  but  learning  that  Dr.  Loomis 
had  taken  charge  of  her,  left  her  and  saw  her  no  more. 

1  Boston  Med.  and  Surg.  Jour.  vol.  liv.  p.  129. 
10 


146  CIVIL   MALPRACTICE. 

Dr.  Loomis  found  swelling  of  one  wrist,  and  serious  con- 
tusion of  one  leg  just  below  knee,  with  so  great  swelling  of 
the  leg  that  it  would  have  been  impossible  to  ascertain  with 
certainty  the  existence  of  fracture  of  tibia,  had  he  consid- 
ered it  proper  to  make  a  thorough  examination.  But  find- 
ing neither  unnatural  mobility  nor  any  apparent  displace- 
ment, he  waited  for  subsidence  of  the  inflammation  before 
handling  the  part,  in  the  mean  time  supporting  the  leg 
and  foot  and  making  applications  to  reduce  inflammation. 
The  wrist  gave  no  evidence  of  fracture  or  dislocation,  and 
when  the  swelling  about  it  had  subsided.  Dr.  L.  gave  it  no 
further  attention. 

On  the  eleventh  day,  the  patient  was  removed  to  West- 
minster by  her  friends,  three  miles  further  (six  miles  in  all) 
from  Dr.  Loomis's  house,  without  the  knowledge  or  con- 
sent of  the  physician.  She  rode  in  a  wagon,  sitting  on  the 
seat,  with  her  foot  resting  on  its  side  on  bedclothing  piled 
up  before  her.  Dr.  Loomis  did  not  see  her  again.  For 
seventeen  days  she  remained  without  medical  attendance, 
and  then  called  in  Dr.  Kittredge,  of  Walpole,  having  in 
the  mean  time  removed  again  to  Walpole. 

Dr.  Kittredge  made  a  deposition  which  was  read  to  the 
court.  He  deposes  that  he  found  deformity  of  the  radius, 
from  a  fracture  within  an  inch  and  a  half  of  its  lower  ex- 
tremity, with  dislocation  of  the  ulna  ;  and  deformity  of  the 
tibia  from  a  transverse  fracture  three  inches  below  its  head, 
and  displacement  of  the  lower  fragment  toward  the  fibula, 
the  upper  fragment  remaining  in  place.  He  deposes  that 
union  of  the  tibia  was  then  not  complete,  and  that  the  limb 
could  not  support  her  weight.  He  deposes  that  he  applied 
pasteboard  splints  and  bandages.  He  did  not  attempt  to 
reduce  the  fracture. 

How  long  the  splints  were  continued,  we  have  no  evi- 
dence. The  limb  has  been  tightly  rolled  to  the  present 
time,  and  the  patient  has  never  attempted  to  use  it,  but  has 
constantly  gone  on  crutches. 

This  is  the  case,  as  presented  by  witnesses  at  the  trial. 


FRACTURES  NEAR  KNEE  AND  IN  LEG.       147 

Between  one  and  two  years  after  the  injury  was  received, 
Mrs.  Closson  removed  from  Walpole,  N.  H.,  to  Woodstock, 
Windsor  Co.,i  Vt.  After  remaining  there  long  enough  to 
acquire  a  legal  residence,  she  entered  actions  for  malpractice 
against  Drs.  Campbell  and  Loomis  in  the  Windsor  County 
Court.  She  then  returned  to  Walpole  to  reside.  When 
the  case  of  Dr.  Campbell  was  to  come  to  trial,  she  withdrew 
the  suit  against  him  in  Woodstock,  and  commenced  one  in 
Keene,  N.  H. 

Dr.  Campbell  was  tried  in  Keene  in  October,  1855,  and 
acquitted.  The  suit  against  Dr.  Loomis  was  tried  at  Wood- 
stock, Vt.,  in  the  December  term  of  1855,  before  Judge  Un- 
derwood. Messrs.  Tracy  of  Woodstock,  and  Marcy  of  Roy- 
alton,  were  counsel  for  the  plaintiff ;  Messrs.  Washburn  and 
Marsh,  of  Woodstock,  for  the  defendant.  The  jury  brought 
in  a  verdict  for  the  defendant. 

The  grounds  of  accusation  were,  maltreatment  of  the  case 
and  unjustifiable  desertion  of  the  patient.  The  counsel  for 
the  plaintiff  attempted  to  show  that  the  displacement  of  the 
tibia  could  not  have  taken  place  during  her  removal ;  as  it 
would  have  been  attended  with  so  much  pain  that  it  must 
have  been  evident  to  the  patient  '  that  something  extraor- 
dinary had  taken  place.'  Whereas  she  testified  that  there 
was  no  particular  increase  of ,  pain  at  that  time,  as  she  was 
already  suffering  nearly  all  she  could  bear.  Her  counsel 
therefore  contended  that  the  displacement  must  have  ex- 
isted from  the  first,  and  ought  to  have  been  discovered  by 
the  physician.  And  in  their  argument,  these  gentlemen 
ridiculed  the  idea  that  a  blow  severe  enough  to  produce  a 
transverse  fracture  of  the  tibia  would  not  displace  the  frag- 
ments, while  such  displacement  might  take  place  gradually, 
and  even  without  producing  any  peculiar  sensations,  in  the 
course  of  a  ride  of  three  miles,  eleven  days  later  ;  a  singu- 
lar instance  of  ignorance  and  weakness  of  mind  that  substi- 
tutes partisan  presumptions  for  the  evidence  of  experiment 
and  experience. 

1  Putney,  where  she  was  hurt,  is  in  Windham  County,  Vt. 


148  CIVIL  MALPEACTICE. 

ABSTRACT   OF   EVIDENCE.  —  EOE.   DEFENDANT. 

G-ustavus  H.  Loomis :  Am  defendant.  Have  practised 
medicine  and  surgeiy  for  nine  years.  First  called  to  visit 
patient  on  the  night  of  the  25th  of  October,  1852,  between 
the  hours  of  10  and  11  o'clock.  I  saw  her  at  John  H.  Stod- 
dard's house  in  Putney,  Vt.,  between  the  hours  of  11  and 
12  o'clock.  Found  her  lying  on  a  sofa.  Her  friends  said 
she  had  fallen  down  cellar.  She  appeared  in  a  very  nervous 
and  excited  state.  I  made  a  very  slight  examination  of  the 
leg  when  she  was  lying  on  the  sofa.  Assisted  in  carrying 
her  to  the  bed.  I  think  I  examined  the  arm  before  moving 
her.  After  she  was  placed  on  the  bed,  I  passed  my  hand 
over  the  limb  ;  it  was  very  much  swollen,  —  more  than  I 
ever  saw  in  such  a  case  before  in  so  short  a  time.  I  exam- 
ined her  by  passing  my  hand  over  the  bone  and  by  looking 
at  the  limb.  She  was  quite  fleshy.  I  deemed  the  best 
course  to  pursue  was  to  place  the  limb  in  an  easy  position, 
and  try  to  reduce  the  inflammation  and  swelling.  I  placed 
a  pillow  under  the  knee,  and  supported  the  limb  so  as  to 
make  it  as  easy  as  possible.  I  treated  it  as  though  it  had 
been  a  fracture.  I  thought  it  might  be  a  fracture.  Gave  an 
anodyne,  and  applied  a  cooling  lotion.  I  rotated  the  wrist, 
bent  the  fingers,  flexed  the  wrist  and  extended  it.  She 
could  adduct  and  abduct  it.  She  complained  of  some  pain, 
but  I  could  not  detect  any  displacement.  I  treated  the 
wrist  with  a  flannel  roller  and  applied  cooling  lotions.  Used 
flannel,  as  this  would  retain  moisture  longer.  I  left  her 
comfortable.  I  gave  her  no  opinion,  —  I  mean  no  direct  one. 
I  said  to  one  of  the  attendants,  if  the  small  bone  of  the  leg 
was  broken  high  up,  it  would  take  care  of  itself,  and  would 
not  need  a  very  extensive  examination.  Should  think  I  was 
there  three  or  four  hours.  Accident  occurred  on  Monday, 
and  this  was  early  Tuesday  morning.  I  saw  her  again  near 
the  middle  of  the  day.  Was  as  comfortable  as  could  be  ex- 
pected. Treatment  continued.  Leg  more  swollen  ;'  more 
discoloration.     Wrist  much  the  same.     Too  much  swelling 


FEACTUEES  NEAE  KNEE  AND  IN  LEG.       149 

to  make  a  correct  diagnosis.  Did  not  see  her  on  Wednesday, 
because  my  own  health  was  poor,  and  I  thought  she  would 
get  along  as  well.  I  saw  her  again  on  Thursday.  There 
were  blisters  on  the  leg  ;  more  inflammation ;  skin  shining. 
Blisters  were  from  the  size  of  a  fourpence-half-penny  to  that 
of  a  j)in's  head.  The  foot  was  somewhat  swelled.  Inflam- 
mation was  more  extensive.  I  directed  a  yeast  poultice  to 
be  applied  to  the  part.  I  did  not  advise  this  before.  I  put 
this  on,  as  there  were  symptoms  denoting  a  tendency  to 
mortification.  There  was  no  poultice  on  when  I  came.  I 
did  not  examine  the  limb  to  ascertain  whether  there  was 
fracture,  as  it  would  have  been  necessary  to  press  the  limb 
hard  enough  to  have  felt  the  edges  of  the  bones,  and  move 
the  limb  so  as  to  produce  crepitus  ;  and  this,  in  the  already 
excited  state  of  the  parts,  might  have  produced  gangrene.  I 
felt  confident  that  if  there  was  friction  the  bones  were  in  ap- 
position. I  applied  liniment  to  the  wrist.  I  saw  her  again 
on  Friday.  She  was  better.  Her  whole  condition  better. 
Her  leg  had  not  increased  in  size.  Blisters  were  no  worse. 
Did  not  make  an  examination,  for  the  same  reasons  that  I 
did  not  yesterday.  Examined  the  wrist;  could  detect  no 
fracture.  I  again  saw  her  on  Saturday  ;  the  swelling  had 
gone  down  a  very  little  on  the  leg ;  not  any  on  the  knee. 
Discontinued  the  yeast  poultice.  The  blisters  had  disap- 
peared, and  the  general  appearance  was  better.  I  made  no 
examination,  because  I  did  not  think  it  safe.  The  limb  did 
not  show  any  departure  from  the  proper  direction  and  nat- 
ural position.  There  was  no  apparent  deformity.  What 
force  was  used  in  my  examinations  of  the  fracture  had  not 
shown  that  there  was  any  motion  in  the  bones.  She  said  on 
Saturday  that  I  need  not  trouble  myself  any  more  about  her 
wi'ist,  as  that  was  well  enough.  She  had  all  the  motions 
free  in  it,  and  after  this  day  I  did  not  examine  it.  I  next 
saw  her  on  Monday.  The  leg  was  improving ;  the  swelling 
had  gone  down  a  very  little;  but  I  did  not  make  any  exam- 
ination, for  the  same  reason  as  before.  I  again  saw  her  on 
Thursday.     I  did  not  make  any  examination.     Her  leg  was 


150  CIVIL  MALPEACTICE. 

in  the  same  position  as  at  the  previous  visits ;  the  inflamma- 
tion v^as  less.  There  was  something  said  about  her  being 
moved.  I  declined  giving  my  consent,  on  this  occasion,  and 
at  all  times.  I  told  them  I  would  be  there  on  Friday  or 
Saturday  and  make  a  thorough  examination,  and  determine 
about  her  moving ;  and  when  she  was  moved,  I  wanted  to 
be  there  myself,  and  see  to  it,  and  fix  it  up.  They  said 
'  Yes,  she  must  be  bandaged,  of  course.'  I  said  to  them 
that  that  would  not  do ;  I  must  see  to  it  myself.  I  went 
there  again  on  Saturday,  and  was  then  informed  that  she  had 
been  moved.  I  had  not  been  informed  that  she  was  going 
to  be  moved.  I  had  never  given  my  consent  to  her  being 
moved  at  any  time.  I  did  not  know  where  she  was  going. 
I  was  told,  after  she  was  gone,  that  she  was  at  Mr.  Floyd's, 
a  distance  of  six  miles  from  my  house.  I  never  saw  her 
afterwards  professionally.  I  was  never  asked  to  attend  her 
after  she  was  moved,  nor  did  I  suppose  that  I  was  expected 
to  do  so.  I  supposed  she  was  in  the  hands  of  her  own  physi- 
cian. I  never  put  any  bandages  or  splints  to  her  leg.  The 
use  of  splints  is  to  keep  broken  bones  in  apposition.  In  this 
case  I  think  bandaging  might  produce  mortification.  Bones 
begin  to  unite  in  from  nine  to  twelve  days,  as  a  general 
thing ;  but  this  would  be  affected  by  the  health  and  age  of 
the  patient,  and  other  circumstances.  In  the  plaintiff's  case, 
with  her  health,  I  should  expect  in  a  common  simple  fracture 
that  union  would  commence  in  from  twelve  to  twenty  days 
—  say  fourteen  or  sixteen  days.  In  such  a  case  as  this,  I 
think  the  inflammation  should  somewhat  subside  before  re- 
ducing the  fracture.  The  size  of  the  broken  ends  at  the 
point  of  fracture  would  tend  to  keep  the  bones  in  place  ;  or 
it  would  not  be  so  liable  to  displacement  as  if  they  were 
smaller.  Where  there  are  two  bones  in  a  part,  as  in  the 
fore-arm  and  leg,  the  unbroken  bone  operates  as  a  splint. 
There  was  no  displacement  of  the  fibula.  If  bones  are  in 
place  and  the  direction  of  the  limb  is  right,  no  further  exam- 
ination is  necessary.     It  would  make  a  great  difference  from 


FRACTURES  NEAR  KNEE  AND   IN  LEG.  151 

what  part  of  the  wrist-joint  Dr.  Kittredge  measured.^  The 
nearer  to  the  ^vrist-joint  the  fracture  was  in  the  radius,  the 
more  difficult  would  it  be  to  diagnosticate,  and  the  less  would 
be  the  danger  of  displacement.^  If  a  patient  was  moved  that 
had  such  a  fracture  as  the  plaintiff,  without  preparation,  I 
should  expect  displacement.  By  preparation  I  mean  splints. 
If  the  reasons  for  moving  were  very  urgent,  I  would  have  her 
limb  splinted,  and  have  her  moved  as  easily  as  possible.  If 
the  patient  must  be  moved,  in  a  case  of  simple  fracture, 
where  there  is  no  great  inflammation,  the  sooner  she  is  moved 
the  better.  After  reparation  had  begun,  it  ought  not  to  be 
allowed.  If  bones  are  in  apposition,  and  they  can  be  kept 
there  without,  it  is  as  well  not  to  use  splints  as  to  use  them. 
A  simple  fracture  is  where  there  is  no  communication  with 
the  external  air  through  the  soft  parts. 

Cross-examination.  I  have  testified  on  this  case  once  be- 
fore. I  cannot  say  that  I  then  stated  anything  about  gan- 
grene. I  think  I  then  said  there  was  not  much  deformity  or 
swelling  at  the  wrist.  I  made  no  thorough  examination,  be- 
cause I  deemed  it  to  be  imprudent,  on  account  of  the  inflam- 
mation ;  and  if  there  was  a  fracture,  it  might  produce  dis- 
placement or  extreme  irritation  and  inflammation.  She 
might  or  might  not  have  any  great  amount  of  pain  in  mov- 
ing. This  might  depend  on  the  amount  of  nervous  sensi- 
bility. I  thought  it  would  not  be  safe  to  move  the  limb. 
Moving  of  the  limb  would  be  apt  to  produce  irritation  under 
any  circumstances.  I  did  not  know  where  the  house  was 
where  Mr.  Floyd  lived.  I  did  not  know  Mr.  Floyd.  They 
were  strangers  to  me  entirely.  I  had  practised  in  that 
neighborhood.  I  had,  I  suppose,  attended  a  patient  in  Mr. 
Floyd's  house.  How  long  before,  I  do  not  know.  I  univer- 
sally refused  to  give  my  consent  to  her  being  removed.  I 
called  on  Mrs.  Closson  once  at  Walpole.  I  did  not  call 
professionally,  but  because  I  heard  a  rumor  about  there  being 

1  Referring  to  Dr.  K.'s  deposition,  that  there  was  fracture  of  the  radius  an 
inch  or  an  inch  and  a  half  from  the  joint. 

'^  The  testimony  was  in  reference  to  transverse  fracture. 


152  CIVIL  MALPRACTICE. 

broken  bones.     I  found  tliem  fractured  ;  the  tibia  of  tlie  leg, 
and  the  radius  of  the  arm.     There  was  a  decided  deformity. 

Re-direct.  Went  to  see  the  plaintiff,  and  stayed  there  some 
twenty  minutes.  There  was  not  much  swelling.  I  could 
see  there  was  a  crook  where  it  ought  to  be  straight.  When 
I  last  saw  her  there  was  no  such  crook.  If  there  had  been 
such  a  crook,  I  should  have  seen  it  when  she  was  at  Putney. 
If  I  were  going  to  move  her,  I  should  prefer  a  litter. 

John  Campbell :  Reside  in  Putney.  Am  a  practising 
physician  and  surgeon.  Was  called  on  the  night  of  October 
25,  1852,  to  see  Mrs.  Nancy  Closson,  the  plaintiff  in  this 
suit.  Saw  her  the  next  morning,  I  went  into  the  room.  I 
did  not  move  the  limb.  Her  leg  was  swollen  and  a  good 
deal  discolored.  It  was  in  a  good  position  and  well  sup- 
ported. I  was  about  to  run  my  hand  up  on  the  leg  and  she 
objected.  I  judged  that  the  leg  was  not  out  of  place.  It 
had  none  of  the  appearances  that  it  had  at  Walpole  some  ten 
or  twelve  weeks  afterwards.  I  think  I  should  have  noticed 
it,  if  it  had  been  out  of  place  as  at  Walpole.  There  ap- 
peared to  be  a  good  deal  of  nervous  sensibility.  I  should 
not  have  thought  it  good  practice  to  have  made  a  thorough 
examination.  I  have  known  Mrs.  Closson  for  twenty  years. 
She  is  of  a  nervous  temperament  and  a  scrofulous  habit.  I 
have  attended  her  during  several  severe  fits  of  sickness  ;  one 
of  epidemic  erysipelas.  She  at  one  time  had  a  functional 
heart  difficulty.  Union  between  broken  bones  takes  place 
in  from  ten  to  twenty  or  twenty-five  days.  In  this  case  I 
don't  think  nature  would  have  done  much  in  less  than  fifteen 
days.  The  time  would  increase  with  age,  and  be  modified 
by  constitution  and  habit.  Splints  are  for  keeping  bones 
in  apposition.  They  are  a  necessary  evil.  Where  there  is 
great  inflammation,  splints  and  bandages  may  produce  gan- 
grene. We  should  do  without  them  when  we  can,  that  is, 
when  the  bones  will  remain  in  place  without  them.  I  have 
had  to  take  off  splints  and  bandages  after  I  have  put  them 
on.  From  the  breadth  of  surface  of  the  broken  bone,  the 
fracture  would  not  be  easily  displaced.     The  fibula  in  this 


FRACTURES   NEAR   KNEE   AND   IN    LEG.  153 

case  would  serve  as  an  excellent  splint.  I  would  delay  ex- 
amination in  such  extensive  inflammation  until  the  inflam- 
mation had  in  a  great  measure  subsided.  The  position  was 
a  good  one  ;  the  limb  was  flexed  just  enough  to  relax  the 
muscles.  If  the  patient  was  put  into  a  wagon,  placed  on  the 
seat,  and  moved  in  this  way,  I  should  expect  displacement 
of  the  bones.  The  nearer  a  fracture  is  to  the  end  of  a  bone, 
the  less  likely  it  is  to  be  displaced,  and  the  more  difficult 
will  it  be  to  make  a  correct  diagnosis.  A  fracture  of  the 
radius  within  an  inch  or  an  inch  and  a  half  of  the  wrist-joint, 
may  not  affect  the  motions  of  the  hand  as  much  as  a  severe 
sprain.  In  case  of  transverse  fracture  of  the  radius,  the  ulna 
would  not  necessarily  be  dislocated,  and  if  it  was  dislocated 
there  must  be  displacement  of  the  radius. 

Cross-examined.  I  made  no  particular  examination.  In 
an  ordinary  case,  the  practice  is  to  reduce  the  limb  as  soon 
as  the  surgeon  is  called.  It  depends  on  the  constitution 
of  the  patient,  the  condition  of  the  limb,  &c.  I  usually 
prefer  doing  it  at  once,  when  it  can  be  done.  When  the 
fracture  is  oblique,  there  is  more  danger  from  spasms  of 
muscles.  If  such  a  patient  was  to  be  moved,  splints  should 
be  put  on  the  limb.  If  the  bone  was  displaced  during  the 
journey,  the  pain  caused  by  it  would  be  discernible. 

Re-direct.  I  did  not  examine  the  bone  very  critically  at 
Walpole.  The  visit  was  a  short  one.  It  is  my  impression 
that  Dr.  Loomis  invited  me  there.  There  is  very  little  dan- 
ger of  displacement  in  a  fracture  like  this,  when  the  patient 
is  asleep.  If  I  rotated  the  hand,  flexed  and  extended  it, 
and  felt  the  bones  with  my  fingers,  I  should  think  it  was  a 
sufficient  examination. 

Wm.  Henry  Thayer :  Am  a  practising  physician  and  sur- 
geon. Have  been  in  practice  twelve  years.  Am  professor 
of  pathology  and  the  practice  of  medicine  in  the  college  in 
this  place.  I  teach  anatomy  during  the  winter  term.  When 
a  surgeon  is  called  in  a  case  of  injury,  it  is  his  first  duty 
to  make  as  thorough  an  examination  as  the  circumstances 
of  the  case  will  allow  ;  and  ascertain,  if   possible,  whether 


154  CIVIL  JIALPRACTICE. 

there  is  a  fracture,  and,  if  so,  its  nature  and  extent.  The 
ordinary  symptoms  of  fracture  are  displacement  and  unnat- 
ural mobility  of  the  bone.  There  may  be  fracture  without 
displacement.  There  would  be  more  difficulty  in  determining 
whether  there  was  or  was  not  fracture,  in  such  a  case.  The 
Hability  to  displacement  would  be  affected  in  this  case  by 
there  being  another  bone  in  immediate  relation  with  the 
fractured  one.  The  two  bones  of  the  leg  are  bound  together 
by  strong  ligaments,  which  make  them  like  one  bone.  There 
is  not  much  tendency  to  displacement,  where  the  tibiar  is 
fractured  near  its  upper  extremity,  from  the  greater  size  of 
the  broken  ends  at  that  point.  If  the  fracture  was  occa- 
sioned by  a  direct  blow,  I  should  expect  swelling  of  the  soft 
parts  to  follow  at  once.  In  a  case  like  the  plaintiff's,  I 
should  expect  considerable  swelling,  and  that  it  would  com- 
mence immediately  after  the  injury  ;  and  if  the  surgeon  was 
called  in  three  or  four  hours  after  the  injury,  it  might  be 
impossible  to  determine  with  accuracy  whether  there  was 
fracture  or  not.  In  such  a  case  as  the  plaintiff's,  the  sur- 
geon ought  not  to  handle  the  soft  parts  ;  he  should  disturb 
them  as  little  as  possible,  —  that  is,  in  a  case  like  this,  where 
there  is  no  material  displacement.  There  being  no  apparent 
displacement,  and  much  swelling  in  the  surrounding  tissues, 
the  surgeon's  duty  is  to  place  the  limb  in  as  easy  position 
as  possible  for  the  patient,  and  make  such  applications  as 
will  tend  to  alleviate  pain  and  reduce  the  inflammation. 
The  surgeon  may  make  an  examination  when  the  mflam- 
mation  has  in  a  great  degree  subsided  ;  and  he  should  not 
do  so  before  that  time.  No  union  of  the  bones  can  take 
place  while  there  is  great  swelling  and  inflammation  ^  in  the 
parts,  and  these  should  be  first  reduced.  The  object  of 
splints  is  to  keep  bones  in  apposition.  In  regard  to  the 
proper  position  for  the  leg,  there  might  be  a  difference  of 
opinion.  I  think  the  position  was  a  good  one.  It  is  good 
practice  in  some  cases  to  dispense  with  splints.      It  would 

1  Inflammation  is  not  iinderstood  by  lawyers  to  include  swelling  ;  hence  the 
phi'aseology  of  testimony  here  and  elsewhere. 


FEACTURES  NEAE  KNEE  AND  IN  LEG.       155 

be  bad  practice  to  use  splints  where  there  was  great  swell- 
ing and  inflammation  around  the  fracture.  Splints  cannot 
be  used  without  bandages.  It  would  not  have  been  proper 
to  apply  splints  in  such  a  case  as  was  testified  to  by  the 
defendant.  To  have  used  them  in  the  condition  in  which 
the  plaintiff  then  was,  would  have  endangered  the  safety 
of  the  limb.  The  use  of  splints  would  not  have  been  in- 
dicated until  the  inflammation  had  in  a  great  measure  sub- 
sided. No  displacement  could  well  take  place  in  a  fracture 
such  as  this  is  shown  to  have  been,  while  the  limb  is  at  rest. 
There  is  no  force  in  the  limb  itself  to  draw  the  fragments 
from  their  proper  relations,  with  the  exception  of  one  muscle 
(the  popliteus)  ;  and  that  could  only  affect  the  upper  frag- 
ment, as  it  is  inserted  into  the  upper  fifth  of  the  tibia.  The 
upper  fragment  would  not  be  likely  to  be  displaced,  from 
the  fact  that  it  is  held  in  position  by  strong  muscles.  The 
other  muscles  ^  run  parallel  with  the  shaft  of  the  bone,  and 
consequently  could  not  affect  its  fragments  in  a  manner  to 
produce  displacement.  I  would  account  for  the  displace- 
ment in  this  case,  by  the  removal  of  the  plaintiff  with- 
out the  limb  being  sufficiently  supported.  The  plaintiff 
might  have  been  removed  carefully  after  putting  on  splints 
and  bandages,  without  producing  displacement.  In  a  case 
such  as  the  plaintiff's,  I  should  expect  such  removal  as 
was  testified  to  might  produce  displacement.  I  should 
not  expect  any  dislocation  of  the  fibula  from  the  removal. 
I  heard  the  defendant's  testimony  in  regard  to  his  treat- 
ment of  the  leg.  I  think  his  treatment  was  good,  as  he 
has  stated  the  facts.  A  fracture  of  the  radius  near  the 
wrist- joint  is  not  so  easily  discovered  as  one  farther  up. 
Such  an  one  is  sometimes  very  difficult  to  detect.  On 
being  called  to  see  a  wrist  that  had  received  an  injury,  I 
should  first  examine  it  with  the  eye  to  see  if  the  bones 
were  in  place.  If  I  could  not  satisfy  myself  by  this,  I 
should  pass  my  hands  along  the  edges  of  the  bones,  and 
observe  the  motions  of  the  joints.  If  there  was  no  apparent 
1  Meaning,  all  but  the  poi)liteus. 


156  CIVIL  MALPRACTICE. 

deformity,  and  I  could  detect  no  evidence  of  a  fracture  by 
passing  my  hands  over  the  bones,  and  the  motions  of  the 
wrist  were  free,  I  should  keep  the  part  quiet,  and  make  such 
applications  as  would  tend  to  reduce  the  inflammation.  The 
highest  medical  authority  says  that  a  fracture  of  the  radius 
occurring  as  near  the  wrist-joint  as  it  appears  to  have  been 
in  this  case,  is  sometimes  very  difficult  to  detect,  and  will 
sometimes  exist  without  displacement  of  the  fragments.  If 
the  ulna  had  been  dislocated,  it  would  have  been  most  prob- 
ably thrown  either  backward  or  forward,  producing  so  great 
a  deformity  either  on  the  back  or  in  the  palm  of  the  hand 
as  could  not  be  overlooked  by  a  surgeon.  Subsequent  dis- 
placement of  the  fractured  ends  of  the  radius  would  not  of 
itself  dislocate  the  ulna.  It  would  require  some  new  injury 
to  occasion  it.  The  surgeon  having  made  up  his  mind  that 
there  was  no  fracture,  the  inflammation  having  subsided,  and 
no  complaint  being  made  by  the  patient,  I  do  not  think 
there  was  any  necessity  of  his  making  another  examination. 
Spasmodic  contraction  of  the  muscles  will  occur  from  the 
effects  of  displaced  bone  on  the  surrounding  tissues.  They 
may  occur  at  any  time,  according  to  the  circumstances  of 
the  case.  I  do  not  consider  it  probable  that  the  tibia  could 
have  been  displaced  by  the  spasmodic  action  of  the  muscles. 
Displacement  is  very  unlikely  to  occur  when  the  patient  is 
quiet  in  bed.  She  is  not  likely  to  move  her  limb  when  it  is 
in  the  state  described.  She  might  if  she  were  delirious  or  in 
a  state  approaching  to  delirium. 

Cross-examined.  Displacement  of  the  tibia,  as  it  exists 
in  the  plaintiff's  case,  would  not  be  likely  to  occasion  spas- 
modic muscular  contractions.  Such  displacement  will  not 
necessarily  produce  pain.  Pain  does  usually  attend  the  dis- 
placement of  the  fragments  occurring  at  the  time  of  fracture. 
It  is  possible  for  displacement  of  the  fragments  to  take  place 
at  a  subsequent  period,  without  pain  —  particularly  if  grad- 
ual. I  presume  pain  always  occvirs  when  a  bone  is  broken. 
I  think  severe  pain  will  be  felt  when  a  broken  bone  is  pro- 
jected  into  the  flesh.     A   displacement  might   have   taken 


FKACTURES   NEAR   I^iTEE   AND   IN  LEG.  157 

place  during  the  removal  of  the  plaintiff,  without  her  ex- 
periencing any  additional  pain.  I  think  she  would  know 
that  something  extraordinary  had  taken  place,  from  the 
motion  of  her  limb  in  its  inflamed  state,  whether  displace- 
ment of  the  broken  bone  occurred  or  not.  The  immediate 
result  of  such  a  displacement  would  very  likely  be  to  in- 
crease the  inflammation  of  the  limb,  and  affect  her  comfort. 
This  effect  would  probably  continue  several  days.  There 
is  sometimes  great  difficulty  in  detecting  a  fracture  of  the 
radius  near  the  wrist-joint.  I  have  never  seen  a  trans- 
verse fracture  of  the  radius  within  an  inch  and  half  of  its 
lower  extremity,  and  without  displacement  of  the  frag- 
ments. There  is  no  medical  writer,  except  one,  as  far  as 
I  know,  who  mentions  such  a  case.  But  we  have  his  au- 
thority, which  is  great,  for  the  occurrence  of  such  fractures 
and  the  great  difficulty  ^  of  their  detection.  In  a  case  like 
this,  it  is  the  surgeon's  duty  to  watch  the  limb,  and  make  an 
examination  when  the  proper  time  comes.  Nothing  the  pa- 
tient may  say  in  regard  to  the  injured  part  can  excuse  him 
from  making  an  examination,  if  he  thinks  it  necessary  to 
do  so.  Dislocation  of  the  fibula  is  less  likely  to  occur  than 
fracture  of  it ;  any  force  applied  to  it  would  sooner  break 
than  dislocate  it. 

Direct  examination  resumed.  Had  a  dislocation  of  the 
upper  extremity  of  the  fibula  existed  at  the  time  Dr.  Loomis 
saw  her,  it  might  not  have  been  discoverable  on  account  of 
the  swelling.  It  is  not  the  duty  of  a  physician  to  continue 
in  attendance  on  a  patient  who  removes  her  place  of  resi- 
dence, unless  he  is  requested  to  do  so.  A  displacement  like 
that  now  existing  in  the  tibia  did  not  necessarily  occur  all  at 
once,  by  any  sudden  action.  It  is  more  likely  to  have  been 
gradual,  and  probably  took  place  in  that  manner  during  her 
removal. 

Re-cross-examined.  If  a  physician  is  in  attendance  on  a 
patient,  and  is  informed  that  she  is  to  be  removed,  it  is  his 
duty  to  follow  her,  or  give  notice  that  he  will  not  do  so. 

^  The  difficulty  depends  upon  the  absence  of  displacement  of  the  fragments, 
and  the  rarity  refers  to  the  same  point. 


158  CIVIL  MALPRACTICE. 

Ptolemy  Edson :  Am  a  practitioner  of  medicine  and  sur- 
gery. Have  been  in  practice  forty-five  years.  The  duty  of  the 
surgeon  when  called  to  see  a  patient  where  there  may  or  may 
not  be  fracture,  is  to  make  an  examination  at  once.  If  not 
called  until  after  swelling  and  inflammation  have  taken  place, 
he  must  make  a  slight  examination  only.  If  there  has  been 
injury  of  the  soft  parts,  more  swelling  takes  place.  If  there 
is  much  swelling,  he  should  put  the  limb  in  as  quiet  a  condi- 
tion as  possible  and  apply  cooling  lotions.  Fracture  without 
displacement  is  very  common  in  transverse  fractures,  and  es- 
pecially in  parts  where  there  is  another  bone.  If  the  fract- 
ure is  near  a  joint,  it  is  very  difficult  to  detect ;  and  if  there 
be  much  swelling,  it  may  not  be  determined  without  using 
such  force  as  would  be  an  injury  to  the  patient.  The  exami- 
nation should  not  be  made  until  the  swelling  and  inflamma- 
tion had  subsided  in  a  great  measure ;  for  the  reason  that 
union  will  not  take  place  while  the  parts  are  in  such  a  highly 
inflamed  state.  Splints  are  used  to  keep  bones  in  place. 
When  there  is  another  bone  in  the  part,  it  furnishes  one  of 
the  best  splints  we  can  have.  Splints  may  often  be  dis- 
pensed with.  When  splints  are  used,  bandages  must  also  be 
applied.  I  think  Dr.  Loomis  treated  the  limb  in  this  case 
right.  .  I  think  a  patient,  in  such  a  case  as  this,  ought  not  to 
be  moved  for  the  first  eleven  days.  If  it  was  absolutely  nec- 
essary, she  should  be  moved  on  a  litter.  If  moved  in  the 
manner  shown  by  the  testimony,  I  should  fear  displacement. 
I  never  saw  a  case  in  practice,  of  fracture  of  the  radius  within 
an  inch  and  a  half  of  the  wrist-joint,  without  dislocation  of 
the  ulna.  We  have  very  few  accounts  of  such  in  medical 
books.  It  is  very  difiicult  to  discover  fractures  of  the  radius 
at  this  point.  The  usual  way  to  detect  it  is  to  observe  the 
motions  of  the  wrist  and  hand,  and  this  is  not  always  sure. 
In  a  case  like  this,  as  testified  by  the  defendant,  if  I  could 
discover  no  displacement,  I  should  place  the  arm  in  as  quiet 
a  position  as  possible  and  apply  cooling  lotions.  After  I  had 
examined  it  once,  I  should  not  probably  examine  it  a  second 
time,  if  I  heard  no  complaint. 


FRACTURES  NEAR  ItNEE  AND  IN  LEG.  159 

Cross-examined.  When  there  is  a  dislocation  of  one  bone 
and  a  fracture  of  another,  I  should  reduce  the  dislocation  and 
appl}^  splints.  I  use  splints  more  than  is  usually  done  now. 
If  there  is  dislocation,  the  eye  will  detect  it  at  once  ;  as  the 
joint  will  be  thrown  out  of  shape.  Should  think  if  the  dis- 
placement of  the  tibia  took  place  all  at  once,  the  patient 
would  think  something  extraordinary  had  taken  place.  It 
might  be  displaced  gradually.  If  displacement  took  j^lace 
some  time  after  the  fracture,  it  might  occasion  only  slight 
swelling.  The  pain  would  subside  soon  after  the  displace- 
ment —  in  an  hour  or  two. 

Edwin  Hazen  called:  I  am  a  physician  and  surgeon,  I 
have  practised  medicine  thirteen  years.  I  have  seen  the 
plaintiff,  and  examined  her  wrist  and  leg.  I  found  indica- 
tions of  a  transverse  fracture  at  the  wrist.  There  is  no  ap- 
parent dislocation  of  the  ulna,  and  no  evidence  of  any  dislo- 
cation ever  having  taken  place  there.  The  ulna  is  a  little 
more  prominent  than  usual,  from  the  hand  being  carried 
more  to  the  radial  side  of  the  arm.  I  found  evidence  of  a 
transverse  fracture  of  the  tibia  about  three  inches  below  the 
knee-joint.  I'  measured  both  limbs.  There  is  no  evidence 
now  that  there  has  ever  been  any  dislocation  of  the  fibula. 
I  think  it  would  have  broken  rather  than  its  ligaments  have 
given  away.  I  heard  Dr.  Lpomis  testify.  I  think  his  treat- 
ment of  this  case  was  correct. 

Cross-examined.  I  think  the  examination  would  not  be 
so  satisfactory  as  one  made  six  or  eight  weeks  after  the  ac- 
cident. If  the  fibula  had  been  dislocated,  there  would  have 
been  more  deformity  than  there  is. 

Direct  examination  resumed.  If  the  fibula  was  dislocated, 
and  not  reduced  within  a  few  weeks  from  the  time  of  injury, 
it  would  present  the  same  appearance  now.  She  had  her  leg 
bandaged  from  the  foot  to  the  knee,  with  a  book  cover  under 
the  bandage.  She  said  it  was  to  reduce  the  pain.  I  think 
the  bandages  have  had  a  bad  effect  on  the  limb.  The  mus- 
cles have  grown  smaller — are  atrophied. 


160  CIVIL  MALPEACTICE. 


rOK    THE   PLAINTIFF. 


Thomas  C.  Poivers  called :  I  was  called  about  ten  days 
ago  to  go  and  see  the  plaintiff.  I  examined  both  her  leg  and 
arm.  I  discovered  that  there  had  been  a  fracture  of  the 
upper  part  of  th'e  tibia,  and  there  was  a  lateral  displacement 
of  about  one  quarter  of  an  inch.  The  upper  end  of  the  lower 
fragment  had  been  carried  toward  the  fibula — it  may  be  from 
a  quarter  to  a  half  an  inch.  It  has  united  in  the  situation  I 
have  described.  I  have  practised  medicine  and  surgery  for 
twenty-eight  or  twenty-nine  years.  I  was  not  able  to  make 
up  my  mind  that  there  was  any  dislocation  of  the  fibula.  I 
examined  the  wrist,  and  found  the  radius  had  been  broken 
about  an  inch  and  a  half  from  the  joint,  and  the  upper  frag- 
ment carried  toward  the  ulna.  There  is  a  deformity  there 
now.  At  the  first  examination  I  made,  I  thought  there  had 
been  no  dislocation  of  the  ulna ;  I  have  since  examined  it 
and  I  think  there  has  been  a  dislocation  of  the  ulna.  I  don't 
see  how  this  deformity  could  exist  unless  there  had  been  such 
a  dislocation.  I  thmk  there  is  nothing  unusual  in  a  fracture 
at  this  point.  If  there  was  not  much  swelling,  there  would 
not  be  much  difficulty  in  detecting  a  fracture  at  this  point. 
When  no  bone  is  broken,  but  only  a  bruise,  I  should  suppose 
a  removal  could  be  made  without  difficulty.  If  the  leg  was 
fractured,  a  removal  would  tend  to  produce  inflammation 
and  swelling. 

Cross-examination.  1  think  a  sudden  displacement  would 
produce  more  immediate  pain  than  if  it  was  gradual.  The 
broken  ends  project  in  toward  the  ulna.  I  think  the  de- 
formity is  too  much  for  a  simple  fracture.  It  is  difficult  to 
tell  whether  there  was  any  dislocation  of  the  ulna  or  not.  A 
fracture  might  exist  in  the  radius,  and  the  ulna  be  dislocated, 
and  still  the  patient  might  be  able  to  give  a  rotary  motion 
to  the  hand.  The  mere  fact  of  pain  in  rotating  the  hand, 
would  not  of  itself  indicate  whether  it  was  a  fracture  or  a 
sprain.  There  might  be  difficulty  in  determining  where  the 
fracture  now  is  ;  and  a  difference  of  opinion  as  to  where 
it  is. 


EEACTURES  NEAK  KNEE  AND  IN  LEG.       161 

Dr.  TJiayer^  in  his  remarks  upon  the  case,  says  (and  as  he 
develops  in  the  course  of  them  the  views  of  the  eminent  sur- 
gical authorities  of  that  time,  I  present  his  remarks  in  full)  : 

"  The  two  main  points  at  issue  in  this  case,  were  the  cor- 
rectness of  the  surgical  treatment  by  Dr.  Loomis,  and  the 
propriety  of  his  discontinuing  his  attendance  after  the  pa- 
tient's removal.  In  regard  to  the  second  point,  no  opinion  was 
given  by  the  medical  witnesses — the  questions  put  to  them 
by  the  plaintiff's  counsel  having  reference  to  circumstances 
which  did  not  exist,  namely,  what  would  be  a  surgeon's  duty 
in  relation  to  continued  attendance  on  his  patient  who  had 
removed  her  place  of  residence,  having  previously  informed 
him  of  her  intention  to  do  so  ?  It  had  been  testified  by  Dr. 
Loomis  himself,  and  deposed  by  the  nurse,  that  when  Dr. 
Loomis  became  acquainted  with  the  general  desire  of  the  pa- 
tient to  be  removed  as  soon  as  she  was  able,  he  had  uni- 
formly discouraged  it,  and  had  said,  that,  should  it  become 
unavoidable,  he  must  come  and  apply  splints  and  rollers  to 
the  limb.  He  had  never  been  called  upon  to  do  so,  and 
when,  therefore,  on  one  occasion  he  came  and  found  the  pa- 
tient gone,  he  was  fully  justified  in  considering  the  contract 
between  them  to  have  been  annulled  by  the  act  of  the  pa- 
tient herself.  If  bound  to  follow  her  to  the  next  town,  why 
not  further  ?  Where  is  to  be  the  limit  ?  And  this  was  the 
view  taken  by  the  counsel  for  the  defence. 

The  other  point — the  correctness  of  the  treatment  —  in- 
cluded the  propriety  of  omitting  such  an  examination  of  the 
leg  as  would  determine  absolutely  the  existence  of  fracture 
of  the  tibia,  the  propriety  of  omitting  the  apphcation  of 
splints  to  the  limb,  and  the  justification  of  the  surgeon  in 
not  discovering  the  fracture  of  the  radius. 

On  these  three  points,  the  testimony  of  the  physicians  who 
were  called  upon  the  stand  had  reference  to  the  case  in  hand. 
As  to  the  time  for  learning  exactly  the  state  of  a  fractured 
bone  and  reducing  it,  every  surgeon  knows  that  to  put  the 
fragments  in  place  is  the  readiest  mode  of  reducing  inflam- 
mation. But  in  transverse  fracture  of  one  bone  of  the  leg, 
11 


162  CIVIL  MALPRACTICE. 

where  there  appeared  to  be  no  displacement,  and  it  was 
hardly  possible,  from  the  anatomical  arrangement  of  the 
parts,  that  any  should  exist,  there  is  no  reason  for  handling 
a  limb  —  already  very  much  swollen  by  serious  contusion  — 
as  roughly  as  would  be  necessary  to  discover  such  a  fracture  as 
existed  in  this  case.  It  would  be  the  worst  practice  to  do  so. 
John  Bell  is  very  strong  on  this  point.  The  Principles 
of  Surgery,  by  that  acute  surgeon,  contains  a  paragraph 
which  I  shall  qilote  entire,  as  it  refers  to  several  points  at 
issue  in  this  case.  '  In  fractures  of  the  lower  extremitiQ.s 
there  is  no  occasion  for  bandages,  for  the  patient  lying  in 
bed,  the  part  is  in  no  danger  of  being  moved.  Unless  you 
could  invent  a  machine  which  would  enable  a  patient  to  walk 
or  stand  upon  his  leg,  you  need  none.  In  all  fractures  of  the 
leg,  then,  simple  as  well  as  compound,  you  merely  lay  the 
limb  out  upon  its  pillow  or  splint ;  nothing  but  convulsions, 
delirium,  or  mania,  can  endanger  the  fracture  or  require  band- 
aging. In  laying  a  fractured  leg,  where  but  one  bone  is 
broken,  you  need  be  at  no  pains  about  the  posture  ;  if  the  leg 
lie  easy,  and  the  patient  complain  of  no  pain,  all  must  be 
right ;  but  when  both  bones  are  broken,  you  must  be  at  pains 
to  trace  the  sharp  line  of  the  tibia  with  your  finger  —  for 
that  .regulates  the  posture  of  the  leg.  This  you  cannot  do 
at  first,  because  the  general  swelling  hides  the  bone,  but  you 
have  no  fear  of  altering  the  posture  of  the  limb,  and  you 
know  that  the  subsiding  of  the  swelling  marks  the  proper 
period  for  ascertaining  the  posture  of  the  limb.'  ^ 

So  Sir  Charles  Bell  says,  '  When  swelling  has  arisen,  an  ex- 
amination of  the  position  of  the  bones  will  be  found  impracti- 
cable.' I  shall  be  pardoned,  I  trust,  for  referring  to  several 
good  authorities  on  this  point  and  the  question  of  the  use  of 
splints,  although  it  is  well  known  that  there  is  no  difference 
in  the  practice  of  surgeons  in  this  respect. 

John  Hunter  says,  '  Splints  should  not  be  applied  till  after 
inflammation  has  subsided.'  Nathan  Smith  warns  his  reader 
against  the  application  of  splints  in  such  a  way  as  to  produce 

1  Principles  of  Surgery,  by  John  Bell,  New  York  edition,  1810,  p.  128. 


FRACTURES  NEAR  KNEE  AND   IN  LEG.       163 

injury  by  their  pressure.  Dr.  Hayward,  in  his  volume  of 
Surgical  Reports,  page  82,  speaks  of  pressure  as  liable  to 
cause  ulceration  or  sloughing.  Mr.  Ferguson  says  that  in 
certain  cases  (where  there  is  great  injury  of  the  soft  parts) 
it  is  necessary  to  do  without  splints.  Mr.  Cooper,  in  his 
Surgical  Dictionary  (p.  378),  says,  '  When  the  fragments  are 
not  out  of  their  relative  position,  the  surgeon  must  strictly 
refrain  from  all  avoidable  disturbance  of  the  limb.'  In 
South's  translation  of  Chelius  (vol.  i.  p.  556),  we  have  the 
following  remarks :  '  No  fracture  (collar-bone  and  oblique 
fracture  excepted)  should  ever  be  set,  that  is,  put  in  splints 
and  bandaged,  till  after,  three  or  more  days,  or,  more  properly 
speaking,  till  the  swelling  has  ceased,  and  nearly  or  com- 
pletely subsided Therefore,  all  that  should  be  done 

at  first  is  to  lay  the  limb  upon  a  pillow,  in  a  position  which 
gives  the  patient  the  greatest  ease  and  soothes  the  irritability 
of  the  muscles.' 

We  have  thus  discussed  the  first  and  second  points  —  upon 
which  the  daily  practice  of  all  good  surgeons  is  sustained  by 
the  highest  authorities  among  surgical  writers.^ 

The  third  point  relates  to  the  fracture  of  the  radius.  A 
transverse  fracture  of  the  radius  within  an  inch  and  a  half  of 
the  lower  extremity,  without  displacement  of  the  fragments^ 
and  without  dislocation  of  the  ulna,  is  a  very  rare  occurrence. 
So  much  so,  that  I  am  not  aware  of  any  author  except  Che- 
lius who  makes  any  mention  of  it.  But  we  have  his  author- 
ity for  saying  that  it  does  occur,  and  that  it  is  extremely  dif 
ficult  of  recognition. 

Had  the  fracture  been  oblique,  as  it  usually  is,  there  would 
in  most  instances  have  been  displacement  of  the  fragments 
at  once,  and  the  nature  of  the  accident  could  not  have 
escaped  the  observation  of  the  surgeon  ;  but  the  fragments 
were  probably  so  intimately  engaged  at  their  surfaces,  that,  in 

1  If  the  object  be  attained,  namely,  the  keeping  the  fragments  in  apposition 
and  at  rest,  it  matters  not  how  it  be  done.  Where  splints  are  inadmissible,  the 
double  inclined  plane  in  fracture  of  the  femur,  or  pillows  and  cushions  in  a  case 
like  this,  are  the  proper  thing.  The  case  was  treated  as  if  it  wei-e  a  fracture, 
thus  giving  the  patient  the  benefit  of  the  doubt. 


164  CIVIL  MAXPEACTICE. 

tlie  absence  of  any  physiological  force  to  draw  them  asunder, 
they  gave  no  crepitus  nor  indication  of  mobility.  They  be- 
came gradually  displaced  after  the  limb  had  passed  from  the 
observation  of  the  surgeon  and  the  patient  began  to  use  her 
hand.  It  was  then  that  the  nurse  first  noticed  that  the  wrist 
was  '  growing  out.' 

I  have  referred  to  Chelius.  The  following  remarks  are 
taken  from  South 's  translation  of  Chelius,  vol.  i.  p.  611, 
American  ed.  :  '  Fracture  of  the  radius  is  mostly  conse- 
quent to  a  fall  on  the  hand,  when  the  arm  is  outstretched  ; 
in  which  case  it  usually  happens  in  the  middle  of  the  bone. 
More  rarely  it  is  produced  by  direct  violence. 

The  diagnosis  is  not  difficult ;  the  seat  of  the  fracture  is 
felt,  and,  during  pronation  and  supination,  crepitation  also. 
The  fractured  ends  turn  towards  the  cubit.  Only  when  the 
fracture  is  near  the  loiver  end  of  the  hone  is  the  diagnosis  diffi- 
culty and  its  confounding  with  sprain  so  much  the  more  possi- 
ble, 2iS  frequently  at  the  first  there  is  scarcely  any  or  no  distor- 
tion of  the  hand,  nor  is  its  motion  interfered  tvith.'  Where- 
as, when  displacement  has  occurred,  he  says,  '  pronation  and 
supination,  bending  and  violent  straightening  of  the  hand, 
are  very  painful  and  restricted,'  &c.,  &c.  It  is  inevitable, 
from  -analogy  with  experience  of  other  fractures,  to  believe, 
that  if  in  addition  to  the  fracture  being  near  the  lower  ex- 
tremity of  the  radius,  it  is  also  transverse,  the  possibility  of 
its  occurring  without  displacement  becomes  a  strong  proba- 
bility. 

This  much  for  the  case  as  it  was  presented  at  the  trial. 
The  jury  found  no  difficulty  in  bringing  in  a  verdict  for  the 
defendant,  and  he  was  declared  not  guilty.  It  now  becomes 
us  to  inquire  if  there  was  anything  in  the  condition  of 
the  woman  —  irrespective  of  the  connection  of  Dr.  Loomis 
with  the  case  —  which  justified  an  action  for  malpractice. 
Had  she  sustained  any  injury?  Was  she  in  any  degree 
lamed  or  deprived  of  the  full  and  free  use  of  her  leg? 
These  are  extremely  important  questions,  and  had  they 
been  put  to  the  medical  witnesses  on  the  stand,  not  one  of 


FEACTURES  NEAR  KISTEE  AND  IN  LEG.  165 

them  would  have  answered  them  in  the  affirmative.  The 
tibia  is  broken  transversely,  and  one  fragment  is  displaced 
laterally  to  the  extent  of  more  than  a  quarter  and  less  than 
half  an  inch,  leaving  the  surfaces  in  apposition  over  an  ex- 
tent of  three  fourths  of  an  inch  at  the  least.  Union  takes 
place.  And  every  surgeon  knows  that  the  tibia  will  be  as 
strong  as  ever — that,  after  eighteen  months,  if  another  ac- 
cident were  to  produce  fracture  of  the  bone,  it  would  be  as 
likely,  and  probably  more  likely,  to  take  place  anywhere 
else  than  there.  Why,  then,  is  she  still  a  cripple  ?  Why 
does  she  come  into  court  on  crutches  ?  Because  of  the  sub- 
sequent treatment  of  the  case.  The  physician  at  Walpole, 
N.  H.,  who  saw  her  twenty-eight  days  after  the  injury,  ap- 
plied splint  and  rollers.  The  bandage  has  been  continued  to 
the  present  time  —  whether  by  his  advice  or  not  I  am  not 
informed,  and  it  did  not  appear  in  evidence.  But  that  the 
steady  bandaging  and  the  entire  disuse  of  the  limb  are  the 
exclusive  and  sufficient  causes  of  its  present  useless  condition, 
there  can  be  no  doubt.  Dr.  Hazen  testified  to  the  manner 
in  which  a  roller  was  worn  upon  her  leg  ;  he  was  the  only 
witness,  except  Dr.  Powers,  who  had  an  opportunity  of  ex- 
amining her. 

The  confinement  of  six  or  eight  weeks  which  every  pa- 
tient with  fracture  of  the  leg  necessarily  undergoes,  leaves 
him  with  atrophied  muscles  and  stiff  joints,  and  his  first 
steps  are  always  taken  with  pain  and  difficulty.  How,  then, 
can  it  be  otherwise  when  three  years  have  elapsed  instead  of 
two  months  ?  It  does  not  require  disease  to  produce  the 
same  results  ;  false  anchylosis  and  muscular  atrophy  will 
follow  simple  disuse.  Had  the  woman  remained  under  the 
care  of  Dr.  Loomis,  and  begun  to  use  her  leg  at  the  proper 
period,  there  is  no  reason  to  doubt  that  she  would  have  re- 
gained its  use  in  a  short  time.  And  had  she  recovered  with 
just  the  deformity  that  now  exists,  a  jury  would  hardly  have 
considered  the  deviation  from  the  normal  line  of  the  bone  to 
have  been  sufficient  ground  for  damages.  But  even  this  de- 
for.mity  would  hardly  have  occurred  had  the  patient  been 
under  medical  care. 


166  CIVIL  MALPRACTICE. 

It  is  very  evident  that  tlie  physician  at  Walpole  did  not 
consider  the  deformity  a  very  serious  matter,  for  he  did  not 
propose  to  reduce  it,  although  he  saw  it  when  the  amount  of 
union  must  have  been  very  shght,  —  being  only  seventeen 
days  after  the  displacement  probably  took  place,  and  only 
twenty-eight  days  after  the  injury.  Had  he  thought  it  an 
important  matter,  he  would,  of  course,  have  broken  up  the 
callus  and  restored  the  fragment  to  its  place.  There  can  be 
no  doubt  that  this  gentleman  knows  what  is  good  practice  in 
such  a  case,  for  his  own  deposition  —  which  was  read  in 
court  —  stated  that  he  had  been  many  years  in  practice,  and 
that  his  leading  branch  is  surgery  I 

The  mal-position  of  the  tibia  would  never  have  made  the 
plaintiff  a  cripple  in  any  degree.  Neither  she  nor  her  friends 
would  have  been  aware  that  her  leg  had  been  broken,  from 
any  sensations  she  would  experience  or  lameness  she  would 
exhibit. 

It  remains  only  to  speak  of  the  fracture  of  the  radius. 
The  best  surgical  authority  (quoted  above)  has  justified  Dr. 
Loomis  in  failing  to  recognize  it  in  the  very  unusual  form  in 
which  it  occurred.  Had  the  patient  remained  under  his  care 
after  the  gradual  displacement  which  produced  the  present 
deformity,  no  doubt  he  would  have  recognized  it.  Our 
present  inquiry,  however,  is  whether  the  existing  deformity 
of  the  wrist  is  sufficient  ground  on  which  to  rest  an  action. 
An  examination  of  the  evidence  does  not  give  us  much  light 
upon  the  subject.  Mrs.  Closson  testifies  that  she  is  not 
able  to  do  with  her  hand  all  the  things  she  could  before  the 
injury.  But  the  exact  extent  to  which  she  is  crippled,  we 
have  no  means  of  knowing,  —  for  it  was  not  introduced  in 
evidence,  and  the  medical  witnesses  in  general  had  no  oppor- 
tunity to  make  an  examination  of  her.  The  two  gentlemen 
who  did  see  her  were  not  questioned  in  such  a  manner  as  to 
elicit  an  exact  description  of  the  degree  of  deformity  and 
loss  of  power.  They  testified  in  regard  to  dislocation  of  the 
ulna,  and  disagreed.  Every  good  surgeon,  on  reading  the 
evidence,  will  see  that  there  could  have  been  no  dislocation 


FKACTURES  NEAR  KNEE  AND  IN  LEG.       167 

of  the  ulna  at  the  time  of  the  accident ;  since  it  would  be 
impossible  for  a  medical  man  to  avoid  discovering  such  a 
condition  of  the  parts  by  the  e^^e,  —  or,  if  this  will  not  be  al- 
lowed by  those  to  whom  Dr.  Loomis  is  a  stranger,  we  may 
say  that  the  wrist-joint  could  not  have  all  its  motions  (as  it 
had,  by  the  testimony  of  both  plaintiff  and  defendant)  had 
dislocation  of  the  ulna  existed.  Any  other  discrepancies  of 
the  medical  witnesses  in  relation  to  the  wrist  may  be  recon- 
ciled by  the  explanation  that  the  fact  was  not  always  kept 
in  sight  in  the  examination  by  counsel,  that  the  fracture 
in  question  was  transverse ;  much  of  the  testimony  related 
merely  to  fracture  of  the  lower  end  of  the  radius,  as  it 
usually  is,  oblique,  and  necessarily  attended  with  overriding 
of  the  fragments,  by  the  contraction  of  the  extensor  and 
flexor  muscles  of  the  radial  side  of  the  wrist,  and  consequent 
deformity  that  could  not  be  overlooked  by  any  physician, 
and  that  certainly  did  not  exist  four  days  later,  when  the 
patient  said  to  the  physician  that  '  he  need  not  trouble  him- 
self any  more  about  the  wrist,'  for  '  that  is  well  enough.' 
If  there  was  no  dislocation  then,  there  is  none  now,  unless 
the  result  of  some  subsequent  injury.  We  have,  then,  no 
means  of  knowing  to  what  extent  the  plaintiff  is  limited  in 
the  use  of  her  hand.  She  seemed  to  have  no  difficulty  in 
grasping  her  crutch,  and  her  witnesses  gave  no  testimony  as 
to  her  inability  to  use  it." 

Anything  which  tends  to  interfere  with  the  healthy  phy- 
siological action  of  a  part,  or  tends  to  interfere  with  its  nu- 
trition, does  harm.  Thus  the  use  of  bandages,  although 
necessary  in  the  treatment  of  fractures,  should  not  be  con- 
tinued, after  the  necessity  for  them  has  passed ;  so,  too,  a 
limb  that  has  been  broken  will  not  regain  its  accustomed 
strength  till  it  has  been  again  required  to  perform  its  physi- 
ological functions.  These  elements  seem  to  have  entered 
largely  into  this  case. 

The  defendant,  while  he  responded  promptly  to  the  man- 
date to  render  services  three  miles  from  his  office,  perhaps 
for  no  fee,  was  not,  and  should  not  be  forced  to  accept  a 


168  CIVIL  IMALPEACTICE. 

mandate  to  render  such  services  at  twice  that  distance,  es- 
pecially when  the  patient  removed  herself  without  consult- 
ing him  as  to  the  propriety  of  doing  so. 

In  respect  to  the  discovery  of  fractures,  transverse  ones 
might  be  overlooked  by  surgeons  of  eminent  skill,  especially 
transverse  fractures  in  the  upper  pa,rt  of  the  tibia,  associated 
with  extensive  contusion  of  the  soft  tissues  with  their  consecu- 
tive swelling.  Here  spasm  of  the  muscles,  and  the  denticu- 
lation  of  the  fracture  would  prevent  crepitus,  without  the 
exercise  of  more  force  than  would  be  justifiable  under  the 
circumstances.  The  fleshiness  of  the  plaintiff,  as  testified  to 
by  Dr.  Loomis,  is  another  element  that  enters  into  the  diffi- 
culty of  diagnosis  in  all  cases  of  fractures. 

The  occurrence  of  vesication,  had  splints  and  rollers  been 
applied  from  the  first,  would  have  demanded  their  looser  ap- 
plication, if  not  their  complete  removal. 

The  testimony  of  Dr.  Edson  as  to  dislocation  of  the  ulna 
being  an  invariable  accompaniment  of  fracture  of  the  radius 
within  an  inch  and  a  half  of  the  lower  extremity,  relates  to 
the  marked  prominence  of  the  lower  end  of  the  ulna,  in 
these  fractures.  It  does  not  follow  that  because  the  head 
of  the  ulna  is  prominent,  it  is  necessarily  dislocated ;  yet  that 
an  actual  dislocation,  with  rupture  of  its  ligamentous  attach- 
ments frequently  occurs,  there  can  be  no  doubt.  The  radial 
inclination  of  the  hand  is  sufficient  to  account  for  this  prom- 
inence, in  many  cases.  Without  deformity  or  crepitation, 
the  surgeon  would  hardly  be  justified  in  pronouncing  the 
injury  a  fracture,  and  were  he  to  do  so,  patients  would  be  too 
apt  to  charge  him  with  magnifying  the  injury  for  selfish 
motives,  —  a  charge  legitimate  surgeons  endeavor  to  give  no 
cause  for. 

Dr.  Thayer,  in  his  remarks,  quotes  from  the  older  sur- 
geons, in  respect  to  the  use  of  bandages  and  splints  in  the 
treatment  of  fractures  of  the  lower  extremity.  The  prac- 
tice of  more  recent  surgeons  differs  from  that  laid  down  by 
these  authorities,  in  requiring  some  kind  of  mechanical  sup- 
port in  the  treatment  of  most  all  fractures.     In   cases  of 


FRACTURES   NEAR   KNEE   AND   IN  LEG.  169 

erysipelatous  or  other  severe  inflammations  in  a  fractured 
limb,  the  disuse  of  splints  and  bandages  to  some  extent,  at 
least,  should  be  observed. 

Beown  v.  Kendall.1 

(Warren  Co.  (111.)  C.  Court,  January  Term,  1874.) 

Declaration.  "  Negligence  and  unskilfulness,  in  the  set- 
ting of  and  bandaging  of  a  fractured  leg,  and  in  the  use  of 
improper  splints,  bandages,  medicines,  &c.,  whereby  it  be- 
came much  shorter  than  its  natural  length. 

The  second  count  avers  that  defendant,  at  divers  times 
fraudulently,  deceitfully,  and  maliciously  represented  that 
b}^  means  of  his  skill  and  knowledge  as  a  surgeon,  he  could 
cure  the  leg  and  make  it  as  sound  and  well  as  the  left  leg. 
Instead  of  which  he  so  unskilfully,  carelessly,  and  negli- 
gently set,  and  applied  improper  splints  and  bandages,  and 
failed  to  apply  extension,  and  removed  splints,  &c.,  at  im- 
proper times,  &c.,  &c.,  that  by  reason  thereof,  &c.,  plaintiff 
suffered  loss  of  use  of  leg,  and  parts  of  bones  were  dis- 
charged and  came  out  of  leg  so  that  it  became  shorter,  &c. 

To  damage  of  plaintiff  of  $3,000. 

Trial  by  jury. 

History.  The  team  running  away,  plaintiff  jumped  from 
the  wagon,  and  sustained  compound  fracture  of  leg,  about 
midway  between  ankle  and  knee.  The  nature  of  the  case 
sufficiently  appears  from  abstract  of  evidence. 

abstract    of   evidence.  —  FOR    PLAINTIFF. 

Plaintiff'  testified  :  Sent  for  Kendall,  who  came  in  about 
two  hours.  First  put  a  wrapping  cloth  around  my  leg,  set 
it,  put  splints  on  each  side,  and  one  for  leg  to  lay  on  ;  had  a 
hole  for  heel  to  go  through ;  was  padded  Avith  cotton.  He 
was  there  every  day  but  two,  from  November  6th  to  Decem- 
ber 6th.     Leg  remained  on  board  till  Dr.  Cooper  came. 

Br.  Coofer,  who  superseded  Kendall,  testified  :  Inside  of 
1  Bill  of  Exceptions. 


170  CIVIL  MALPEACTICE. 

limb  was  out  from  where  it  ought  to  be,  three  inches,  and 
contraction  of  muscles  caused  sharp  edge  of  tibia  to  come 
out  one  and  a  half  inches  below  original  hurt.  Skin  irrita- 
ble from  maggots  and  skippers  eating  this  flesh ;  back  of  leg 
shows  scars  where  maggots  have  eaten  the  skin.  Straight- 
ened leg,  could  not  lengthen  it.  Saw  patient  next  Sunday 
and  applied  plaster  splints.  Bones  never  got  out  of  their 
places  afterwards.  Limb  one  and  a  half  inches  shorter  than 
the  other.  This  was  a  compound  fracture.  Break  in  fibula 
a  little  above  that  in  tibia.  Scarf-skin  in  places  entirely 
gone,  and  true  skin  eaten  by  maggots.  Attributed  the  great 
tenderness  of  limb  to  fact  of  skin  being  eaten  by  maggots. 
Patient  weak.  Pulse  120  to  130  per  minute.  On  fixing 
fracture,  pain  ceased.  Ordered  him  out  of  bed.  As  swelling 
went  down,  made  another  plaster-splint.  Sharp  point  of 
bone  finally  sloughed  off.  Think  could  have,  if, treated  from 
first,  got  union  with  half  an  inch  shortening  —  would  not 
swear  to  that.  Assuming  everything  favorable,  should  an- 
ticipate half  an  inch  shortening,  not  more,  might  be  less. 

Cross-examined.  Lengthened  it  an  inch  or  an  inch  and  a 
half  by  straightening  it.  No  union  at  that  time.  Muscles 
after  they  contract  for  a  time  take  a  set,  out  of  which  they 
cannot  be  drawn.  Drew  the  inference  that  fibula  was 
broken.  Suppose  calomel  to  some  extent  prevents  adhe- 
sion. 

Br.  Wm.  Hamilton  (Galesburg,  111.)  testified :  Advised 
Cooper  to  bring  it  down  to  full  length,  if  he  could,  without 
too  much  force.  It  occurs  to  me,  that  fibula  might  have 
united,  so  as  to  prevent  drawing  limb  to  full  length.  Think 
with  proper  care  maggots  should  not  have  been  there.  Keep- 
ing bones  in  place  is  a  matter  of  very  great  difficulty  — 
sometimes  impossible. 

Doctor  Buzet  testified,  in  cross-examination,  that  great 
pains  were  taken  in  setting  the  bone.  It  was  properly  done. 
It  had  been  properly  taken  care  of  till  the  time  he  saw  it. 
Saw  it  in  three  or  four  days  again ;  then  noticed  toes  in- 
clined outwards.     When  assisting  a  physician  gratuitously. 


FRACTURES   NEAR  KNEE   AND   IN  LEG.  171 

at  his   invitation,  consider  it  a  breach  of  etiquette  to  notice 
anything  wrong  about  it. 

FOE   DEFENCE. 

Br.  Kendall.,  defendant,  testified :  Fracture  was  prop- 
erly set.  We  commenced  with  great  toe,  bound  roller 
around  foot,  then  bound  splints  clear  up,  tight  as  leg  would 
bear.  Was  there  next  day,  ordered  cold  water  dressing,  and 
salts,  and  Seidlitz  powders.  Gave  liim  hydrate  of  chloral. 
Gave  as  much  attention  to  limb  as  think  was  necessary. 
About  tenth  day  opened  bandage  over  wound,  saw  first  mag- 
got. Took  off  dressings  and  burned  them.  Washed  limb 
thoroughly  and  re-dressed  it  with  new  dressings,  tight  as 
patient  could  bear.  Applied  cloth  with  sweet  cream.  About 
second  or  third  day  found  little  red  spot  one  inch  and  a  half 
below  other  sore,  looked  like  a  boil,  told  them  it  must  be 
spiculas  of  bones  that  might  work  out.  Next  day  found  a 
piece  of  bone,  like  finger  nail,  coming  through  ;  could  just 
see  edge  of  it.  Gave  some  Hydrarg.  cum  creta.  Have  not 
carried  calomel  for  a  year.  (On  account  of  loosening  of  the 
teeth  and  sore  mouth,  it  was  said  he  had  given  calomel.) 
Buzet  thought  we  could  riot  allay  the  biliousness  without 
calomel.  Asked  him  to  loan  me  some.  He  had  Hydrarg. 
cum  creta  (mercury  and  chalk).  Gave  bismuth  and  oxide 
of  cerium.  It  moved  his  bowels  and  checked  them  so  that 
he  was  not  so  sick  at  his  stomach.  Was  there  again  the 
twenty-seventh  or  twenty-eighth  day.  Bone  then  showed 
about  half  an  inch.  Did  not  think  proper  time  had  come 
for  extension.  My  idea  is,  that  you  cannot  extend  it  until 
it  begins  to  form  a  bony  union,  because  you  don't  have  to 
keep  it  on  so  long.  There  was  no  union  at  that  time.  That 
was  the  last  time  I  saw  him  before  Dr.  Cooper  was  called. 
I  was  not  notified  that  he  was  to  be  called.  I  was  notified 
the  next  day  that  he  was  called. 

Br.  S.  M.  Hamilton  (of  Monmouth,  111.)  testified : 
From  the  testimony,  presume  the  dressing  was  well  enough, 
was  properly  set.     Compound  fractures  a  great  deal  more 


172  CIVIL  MAXPRACTICE. 

difficult  than  simple  fractures.  Calomel  would  operate 
against  healing  of  wounds.  Suppose  bony  union  did  not 
commence  at  the  time  case  passed  into  Cooper's  hands. 
Maggots  hatch  two  or  three  minutes  after  eggs  are 
dropped ;  plenty  of  remedies  to  kill  them  ;  would  not  con- 
sider it  proper  treatment  to  allow  them  to  remain." 

The  testimony  of  the  other  medical  witnesses  was  cor- 
roborative of  Dr.  Hamilton's,  so  not  necessary  to  be  given. 

After  instructions  by  the  court,  Smith,  J.,  and  consider- 
ation of  the  evidence,  the  jury  found  a  verdict  for  plaintiff 
in  the  siivi  0/ |1,375.17^. 

Whereupon  counsel  filed  a  motion  for  a  new  trial. 

Kendall  v.  Brown. ^  i 

'  (Suf)reme  Coui-t  of  Illinois.) 

Opinion  by  Scott,  J.  "  The  gravamen  of  this  action  is, 
that,  through  the  unskilful  treatment  of  appellant,  the  sur- 
geon in  charge,  appellee's  leg  became  so  much  shortened  he 
lost  the  comparative  use  of  it.  The  pain  alleged  to  have  en- 
sued is  set  forth  by  way  of  aggravation  of  damages.  The  evi- 
dence was  conflicting  in  a  marked  degree. 

The  third  instruction  asked  by  the  appellant  was  refused. 
It  is  as  follows  :  — 

'  If  the  leg  of  the  plaintiff  has  become  shortened  in  con- 
sequence of  the  fracture  of  the  same,  or  during  the  course 
of  the  treatment  subsequent  to  the  fracture,  the  defendant 
is  not  liable  therefor,  or  bound  to  pay  damages  in  conse- 
quence thereof,  unless  the  shortening  was  due  to  want  of 
reasonable  care  and  skill  on  the  part  of  the  defendant ;  and 
if  the  jury  believe,  from  the  evidence  in  this  case,  that  ex- 
tension of  the  limb  could  not  well  or  safely  be  effected,  nor 
the  means  and  appliances  for  that  purpose  be  safely  used 
before  the  bony  union  commenced,  and  that  bony  union 
under  proper  treatment  would  not  commence,  and  did  not 
commence,  until  after  the  time  defendant  was  discharged, 
and  Dr.  Cooper  took  charge  of  the  case ;  and  that  if  the 
1  Legal  New8,  1875. 


FEACTURES   NEAR   ItNEE   AND   IN  LEG.  173 

shortening  could  be  prevented  at  all,  it  could  only  be  done 
by  the  use  of  proper  extension  applied  when  the  bony  union 
did  commence,  and  continued  until  ossification  had  suffi- 
ciently progressed  to  retain  the  leg  at  its  proper  length,  then 
the  defendant  would  not  be  responsible,  as  the  injury,  in 
such  case,  did  not  result  from  negligence  or  want  of  proper 
skill  on  the  part  of  the  defendant ;  and  if  the  evidence  es- 
tablishes this  state  of  facts  the  jury  should  render  a  verdict 
in  favor  of  the  defendant.' 

Held  :  The  refused  instruction  embodied  the  whole  theory 
of  the  defence  on  this  branch  of  the  case ;  and,  whether  the 
hypothetical  case  stated  was  borne  out  by  the  evidence, 
ought  to  have  been  submitted  to  the  jury.  And  for  the 
error  in  refusing  to  give  this  instruction  the  judgment  will  he 
reversed  and  the  cause  remanded^ 

The  second  trial  of  the  case  cited  supra^  resulted  in  a 
verdict  for  plaintiff,  $1,000  damages. 

Branner  v.  Stormont.i 

Brewer,  J.  "  This  was  an  action  for  malpractice.  The 
cause  alleged  was  the  unskilful  and  negligent  treatment  of  a 
compound  fracture  of  plaintiff's  leg. 

Verdict  and  judgment  were  for  the  defendant. 

N'one  of  the  testimony  is  preserved,  it  being  stated  in  the 
bill  of  exceptions  simply  that  the  plaintiff  offered  testimony 
tending  to  prove  the  allegations  of  his  petition,  and  the 
defendant's  testimony  tending  to  disprove  them. 

The  case  is  before  us,  therefore,  only  upon  the  instruc- 
tions, and  as  to  them  it  nowhere  appears  that  all  that  was 
given  or  refused  are  preserved  in  the  record. 

The  main  questions  presented  by  the  instructions  have 
but  recently  been  before  this  court,  in  the  case  of  Tefft  v. 
Wilcox,  6  Kansas,  46,  and  the  views  therein  expressed  seem 
decisive  of  this  case.     The  court  gave  this  instruction  :  — 

'  The  law  required  the  defendants  to  possess  and  employ 
1  19  Kansas,  51. 


174  CIVIL  MALPRACTICE. 

that  degree  of  skill  which  ordinarily  characterized  the  pro- 
fession at  the  time  the}'  treated  the  limb  ;  and  if  you  find 
that  such  injuries  resulted  from  want  of  such  skill  the  de- 
fendants are  liable.' 

And  the  court  refused  this  instruction  asked  by  the  plain- 
tiff :  '  It  is  the  duty  of  the  attending  surgeon  to  exercise 
such  reasonable  skill  and  diligence  as  thoroughly  educated 
surgeons  ordinarily  employ;  and  in  judging  of  this  degree 
of  skill  in  a  given  case,  regard  is  to  be  had  to  the  advanced 
state  of  the  profession  at  the  time.  In  other  words,  it  is  the 
duty  of  every  artificer  to  exercise  his  art  rightly  and  truly 
as  he  ought,  and  this  is  peculiarly  the  duty  of  professional 
practitioners,  to  whom  the  highest  interests  of  man  are  often 
necessarily  intrusted.' 

If  the  instruction  given  stated  the  law  fully  and  correctly, 
the  court  was  under  no  obligation  to  restate  that  law  in  the 
same  or  different  language  simply  because  requested.  One 
statement  is  enough.     A  refusal  to  repeat  is  no  error. 

That  the  instruction  given  stated  the  law  correctly  cannot 
at  this  late  day  be  questioned. 

Reasonable  care  and  skill  is  the  measure  of  obligation 
created  by  the  implied  contract  of  a  surgeon,  lawyer,  or  any 
other  professional  practitioner.  His  contract  as  implied  in 
law  is,  that  he  possesses  that  reasonable  degree  of  learning, 
skill,  and  experience,  which  is  ordinarily  possessed  by  others 
of  his  profession  ;  that  he  will  use  reasonable  and  ordinary 
care  and  diligence  in  the  treatment  of  the  case  which  he  un- 
dertakes ;  and  that  he  will  use  his  best  judgment  in  all  cases 
of  doubt  as  to  the  proper  course  of  treatment.  Tefft  v. 
Wilcox,  6  Kan.  61;  McOarty  v.  Bauer,  3  Kan.  241  ;  Mc- 
Candless  y.  McWha,  22  Penn.  St.  261;  Leighton  v.  Sargent, 
7  Foster,  460  ;  Howard  v.  Grover,  28  Maine,  97  ;  Simonds 
V.  Henry,  39  Maine,  155. 

The  instruction  refused  was  framed  by  uniting  detached 
sentences  in  the  opinion  of  the  court  in  the  case  above  cited 
from  22  Penn.  St.  261. 

That  case  laid  down  the  rule,  as  above  given,  of  reason- 


FRACTURES  NEAR  KNEE  AND  IN  LEG.  175 

able  skill  and  diligence.     Perhaps  the  instruction  carefully 
analyzed  does  no  more  than  affirm  this  rule.     If  so,  then,  as 
we  have  seen,  it  had  already  been  given  to  the  jury.     But 
there  are  some  expressions  in  it  which  seem  to  carry  the  idea 
of  a  higher  obligation  ;  some,  at  least,  which  would  be  apt 
to  convey  such  an  impression  to  the  jury.     If  told  that  it 
was   the   duty  of  a  surgeon  '  to  exercise  his  art  rightly  and 
truly,'  they  might  reasonably  understand  that  he  was  re- 
quired in  any  given  case  to  use  such   treatment  as  the  cir- 
cumstances of  that  case  demanded,  and  that  a  failure  to  use 
such  treatment  was  a  breach   of  duty.     This,  too,  without 
reference  to   the  cause   of  such  failure,  whether  mistake  of 
judgment,  want   of  the  highest  skill,  or   otherwise.     Under 
these  circumstances  it  was  the  duty  of  the  court  to  avoid  the 
use  of  language  which  was  apt  to  mislead,  and  to  use  only 
that  which  plainly  and  clearly  declared  the  rule.     Of  some 
other  instructions  refused,  we  are  unable  to  see  whether  they 
are  applicable  to  the  facts  of  the  case  as  disclosed  by  the 
testimony,  and  of  course  cannot  say  whether  they  were  prop- 
erly or  improperly  refused.     Of  such   character  is  the   one 
that  it  is  the  duty  of  the  patient  to  submit  to  such  treat- 
ment as  his  surgeon  prescribes,  unless  he  thereby  perils  his 
health  or  life.     Whether  this  be  correct  or  not  is  immaterial. 
For,  though  correct,  it  may  have  been  properly  refused,  be- 
cause there  were  no  facts  developed  in  the  testimony  which 
called  for  any  expression  thereof.     It  is  objected  that  the 
true  measure  of  damages  was  not  given  in  the  instructions. 
But  the  jury  never  reached  the  question  of  damages ;  and  if 
there  be  any  error  in  this  respect  it  has  wrought  no  prejudice 
to  the  plaintiff.  The  judgment  will  he  affirmed. 

All  the  justices  concurring." 


176  CIVIL   MALPRACTICE. 


CHAPTER  VII. 

alleged  malpractice  in  eractures  near  ankle-joint. 
Means  v.  Hallam  and  Barnes. ^ 

(Union  Co.  (111.)   C.  Court.) 

"  The  above  case  was  tried  before  a  jury  at  the  February 
term  of  court,  1874.  Damages  laid  at  $5,000.  Verdict  for 
plaintiff  for  $500.  Motion  for  new  trial  by  defendants  ;  mo- 
tion allowed  and  cause  continued. 

Trial  by  jury  at  August  term,  1874.  Verdict  for  plaintiff 
for  $1,000.  Motion  for  new  trial;  motion  refused  and  judg- 
ment entered  upon  the  verdict. 

Defendants  except  to  the  ruling  of  the  court,  in  overruling 
motion  for  new  trial.     Appeal  prayed  for  and  allowed. 

ABSTRACT   OF   EVIDENCE. 

Plaintiff  testified :  Broke  my  leg  January  19,  1872.  Dr. 
Hallam  was  there  in  fifteen  or  twenty  minutes.  Put  it  in 
splints,  kept  it  there  three  or  four  days,  then  put  it  in  box 
packed  with  cotton ;  two  or  three  blisters,  Hallam  said, 
made  by  splints.  Hallam  said  he  would  be  gone  several 
days,  that  Dr.  Barnes  would  treat  it.  Did  treat  it  till  Hal- 
lam got  back.  Then  Hallam  put  it  on  what  he  called  a 
double-inclined  plane,  and  bandaged  very  tight.  Removed 
home  in  a  short  time.  Hallam  came  out  some  time  after, 
took  off  bandages ;  said  '  Whew  !  been  bandaged  too  tight ; 
skin  had  grown  down  to  bone,  flesh  wasted  away,  would 
grow  back  all  right ; '  but  it  never  will.  First  splints  reached 
from  knee  to  ankle  ;  did  n't  say  anything  about  extending 
1  Bill  of  Exceptions. 


TEACTUEES  NEAE  ANKLE^OINT.  177 

limb ;  did  not  extend  it.  In  good  health ;  forty-six  years  old. 
First  time  moved  from  the  farm  was  on  crutches.  Badly 
swollen,  and  toes  nearly  touched  floor,  and  heel  drawn  up 
six  or  seven  inches.  Was  so  when  I  went  to  Ohio.  Was 
treated  by  Dr.  Hart  six  months.  His  bill  was  worth  two 
hundred  dollars.  Went  to  Ohio  to  be  treated.  Dr.  Hart 
married  my  cousin.  Foot  and  leg  on  as  straight  line  as 
could  be.     Could  work  ankle  a  little. 

Dr.  D.  K.  Grreen  testified :  Have  examined  limbs  ;  broken 
leg  three  fourths  of  an  inch  short.  Think  it  an  oblique 
fracture.  First  duty  of  surgeon  to  adjust  fracture  by  ex- 
tension. Would  give  chloroform.  If  patient  would  not  al- 
low of  proper  adjustment,  would  abandon  case.  Cannot 
be  adjusted  without  extension  and  counter  -  extension. 
Double-inclined  plane  used  by  a  great  many  surgeons  for 
treating  fractures  of  leg  and  thigh  ;  will  not  produce  exten- 
sion, nor  counter-extension  ;  used  by  some  surgeons  to  retain 
fragments  in  place  after  adjustment.  Double-inclined  plane 
is  good  treatment,  and  frequently  resorted  to  by  surgeons 
for  a  great  many  years.  With  best  of  treatment,  by  best 
surgeons  and  appliances,  there  is  shortening.  Might  or  might 
not  use  extension  at  once. 

Cross-examined.  When  both  fracture  and  dislocation,  the 
rule  is  to  reduce  dislocation  fii'st.  If  soft  parts,  such  as 
tendons,  &c.,  are  very  much  wounded  and  strained  and  ten- 
der, that  might  be  a  good  reason  for  not  adjusting  or  using 
extension  and  counter-extension  at  once.  It  is  a  matter  of 
judgment  entirely.  No  doctor  can  tell  except  by  being 
there.  There  are  rules,  but  they  are  general  ones.  Short- 
ening does  continue  sometimes  for  months  after  patient  is 
able  to  move  around.  It  is  not  possible  to  use  extension  in 
all  cases.  Stiffness  in  the  joint  may  continue  for  a  long 
time  after  patient  has  got  well.  If  ligaments  were  torn  in 
receiving  fracture,  and  a  large  amount  of  inflammation  af- 
terwards set  up,  it  would  be  impossible  to  keep  up  exten- 
sion and  counter-extension  to  full  extent  without  great  dan- 

12 


178  CIVIL  MAXPEACTICE. 

ger   to   patient.      An   oblique   fracture   is   a   yery   difficult 
fracture  to  get  a  good  job  out  of." 

From  deposition  of  Dr.  B.  F.  Hart^  Marietta,  Ohio,  to 
whom  plaintiff  went  for  treatment,  we  learn  that  plaintiff 
came  to  his  house  about  October  10, 1872.  Foot  and  ankle 
much  swollen,  and  painful.  Fibula,  or  small  bone,  had  been 
bandaged  so  that  upper  end  of  lower  fragment  was  united 
to  tibia,  or  large  bone.  Upper  fragment  of  fibula  in  normal 
place,  causing  abrupt  or  nearly  square  jog  fracture.  Advises 
bag  of  sand  of  three  or  four  pounds  for  extension.  This 
for  night,  trust  to  splints  during  the  day.  Patients  should 
be  taken  up  every  day.  From  thirty  to  forty  days  firm 
union.  Remove  splints  in  six  weeks.  Toes  anchylosed,  heel 
four  inches  from  floor.  In  February  patient  could  walk 
without  crutch  or  cane.  Her  health  is  permanently  injured 
by  treatment  and  long  confinement  at  time  of  fracture,  caus- 
ing disease  of  liver  and  its  attendant,  dropsy.^ 

rOR    DEFENDANT. 

John  L.  Hallam  testified :  "Am  one  of  defendants  ;  grad- 
uated in  Medical  Department,  University  of  Missouri.  Am 
a  regular  graduate.  Was  told,  when  patient  was  picked  up, 
that  foot  was  turned,  laterally,  at  nearly  right  angles  with 
leg.  Had  been  considerably  straightened.  Leg  swollen,  in- 
jury and  pain,  also,  below  the  ankle.  Thought  it  was  a 
dangerous  fracture,  so  stated  to  them ;  told  them  if  she  got 
well  without  foot  coming  off  she  would  do  well.  Adjusted 
fracture,  deemed  it  impossible  to  apply  extension  and  counter- 
extension  on  account  of  extreme  tenderness  and  swelling. 
After  a  few  days  used  double-inclined  plane  and  endeavored 
to  make  extension  by  means  of  turning  screw ;  could  not 
as  ankle  was  so  extremely  tender.  Visited  patient  several 
times  to  take  off  extension,  because  it  was  so  painful.  She 
could  not  bear  it,  — -  at  least  she  said  so.  Double-inclined 
plane  is  extension  and  counter-extension  of  itself,  foot  acting 
as  weight,  knee  being  raised.     Inflammation  ran  high.     At 

1  Dropsy  more  likely  dependent  on  long-continued  bandaging. 


FRACTURES  NEAR  A^KLE-JOINT.  179 

first  visited  her  two  or  three  times  a  day,  then  once  a  day, 
then  every  other  day.     I  never  used  a  fracture-box. 

Cross-examined.  Swelling  so  great  very  difficult  to  trace 
line  of  fracture.  Ankle-joint  was  so  tender  would  not  bear 
extension.  Told  her  when  parts  began  to  unite  it  would  be 
necessary  to  make  extension.  We  did  try  it,  but  pain  was 
so  great  we  took  it  off. 

Allen  T.  Barnes  testified :  Graduate  of  Louisville,  Ken- 
tucky, Medical  College.  Visited  patient  four  or  five  times. 
Was  there  when  doubled-inclined  plane  was  put  on.  Limb 
had  light  side  splints.  Limb  very  much  swollen,  skin  yel- 
low, foot  cold,  circulation  slow.  Feared  gangrene ;  told  Hal- 
lam  so ;  said  she  would  be  fortunate  if  foot  did  not  have  to 
be  amputated.  Tried  extension,  she  could  not  stand  it. 
Have  a  hobby  —  Plaster  of  Paris  dressing.  Double-inclined 
plane  good  treatment. 

Cross-examined.  If  great  laceration  or  contusion  would 
not  benefit  to  adjust  at  once.  Ankle  greatly  implicated.  In 
such  cases  swelling  is  usually  very  rapid. 

Dr.  Pace.  May  extend  limb  any  time  between  eight  or 
ten  days." 

The  determination  of  the  obliquity  of  a  fracture  imme- 
diately after  the  accident  or  after  consolidation  has  taken 
place,  is  of  great  difficulty,  a  post-mortem  examination  being 
necessary  to  determine  it  with  any  degree  of  certainty. 
Case :  S.,  age  twenty -five,  while  wrestling,  fractured  tibia  in 
lower  third.  Thirty-five  years  after  the  limb  was  carefully 
examined.  It  was  found  to  be  slightly  shortened.  The 
fracture  was  classified  as  a  nearly  transverse  fracture  of  tibia. 
Dying  shortly  after  the  examination  was  made,  the  bones  of 
the  leg  were  macerated  and  cleaned,  when  it  was  found  that 
the  fracture  of  the  tibia,  commencing  on  inner  side,  two 
inches  above  articulating  surface  of  lower  end,  extended  up- 
wards, outwards,  and  backwards  to  end,  five  inches  and  a 
half  above  same  articulating  surface  or  very  near  the  middle 
of  the  shaft.  The  lower  fragment  was  displaced  backward 
half  an  inch.     There  was  also  a  fracture  of  the  fibula  com- 


180  CIVIL  MALPEACTICE. 

mencing  three  fourths  of  an  inch  below  point  of  styloid  pro- 
cess, which,  passing  downwards  and  inwards,  ended  three 
inches  and  a  half  below  point  of  styloid  process.  The  limb 
when  the  ante-mortem  examination  was  made  was  neither 
dropsical  nor  '  beefy,'  and  the  examination  was  carefully 
made. 

Severe  laceration  of  ligamentous  tissues,  and  the  high 
grade  of  inflammation  that  would  necessarily  follow,  would 
forbid  extension  and  counter-extension,  as  these  processes 
are  understood.  Straightening  the  limb,  gentle  extension, 
and  snug,  not  too  tight,  application  of  lateral  splints,  is  about 
all  such  an  injury  would  admit  of." 

Hallam  and  Baenes  v.  Harriet  H.  Means. 

Opinion  by  Mr.  Justice  Craig.  "This  was  an  action 
on  the  case  brought  by  Harriet  H.  Means  in  the  Circuit 
Court  of  Marion  County  against  appellants,  to  recover  dam- 
ages for  the  unskilful  and  negligent  manner  in  which  they 
as  physicians  and  surgeons  treated  a  broken  leg  of  appellee. 

The  ground  mainly  relied  upon  by  appellants  to  secure  a 
reversal  of  the  judgment  is  that  appellee  failed  to  establish, 
by  a  preponderance  of  evidence,  a  want  of  skill  or  a  want  of 
ordinary  or  proper  care  on  the  part  of  appellants  either  in 
adjusting  the  fracture  or  treating  the  broken  limb. 

The  facts  in  the  case  have  been  passed  upon  by  two  juries, 
each  of  which  returned  a  verdict  in  favor  of  appellee.  The 
first  trial  resulted  in  a  verdict  of  $500,  which,  on  motion  of 
appellants,  the  Circuit  Court  set  aside  and  granted  a  new 
trial.  Upon  the  second  trial  the  jury  returned  a  verdict  for 
$1,000,  upon  which  the  court  rendered  judgment. 

Where  the  facts  in  the  case  have  been  passed  upon  by  two 
juries,  each  finding  the  same  way,  and  then  a  reversal  is 
asked  on  the  ground  that  the  evidence  is  not  sufficient  to  sus- 
tain the  verdict,  it  must  be  a  case  in  its  facts  where  the  ver- 
dict is  manifestly  and  clearly  in  conflict  with  the  proof  to 
justify  a  reversal. 


FRACTURES  NEAR  ANKLE-JOINT.  181 

The  law  has  intrusted  the  trial  of  issues  of  fact  before  a 
jury,  and  where  a  party  has  had  the  benefit  of  two  trials  in 
the  mode  prescribed  by  law,  an  appellate  court  ought  not  to 
interfere  except  to  prevent  manifest  injustice. 

It  is  true  that  there  is  a  clear  conflict  in  the  evidence  as  to 
the  skill  used  by  appellants  in  the  treatment  of  the  broken 
limb,  but  upon  a  careful  examination  of  the  whole  testimony, 
we  think  it  apparent  that  the  record  discloses  enough  upon 
which  to  base  the  verdict  of  the  jury. 

The  law  required  appellants,  who  held  themselves  out  to 
the  public  as  physicians  and  surgeons,  to  possess,  and  in  their 
practice  use,  ordinary  skill  in  their  profession. 

While  perhaps  they  would  not  be  required  to  possess  the 
highest  degree  of  skill  which  they  might  acquire  in  the  pro- 
fession, yet  they  were  bound  to  have,  and  in  their  practice 
use,  that  degree  of  skill  which  is  ordinarily  possessed  by 
physicians  in  practice.  Rickey  v.  West,  23  111.  385.  And 
where  an  injury  results  from  a  want  of  ordinary  skill,  or 
from  a  failure  to  exercise  proper  diligence  and  caution  in  the 
treatment  of  a  cJise,  the  physician  must  be  held  responsible. 

The  question  then  is,  whether  appellants  in  the  treatment 
of  appellee  used  that  skill  which  the  law  required,  or  whether 
there  was  evidence  tending  to  establish  a  want  of  ordinary 
skill  in  the  treatment. 

It  appears  from  the  testimony  contained  in  the  record,  that 
on  the  19th  day  of  January,  1872,  appellee's  leg  was  broken. 
The  fracture  of  the  larger  bone  was  oblique,  and  near  the 
upper  part  of  the  lower  third  of  the  limb  the  fracture  of  the 
smaller  bone  was  nearly  transverse,  and  was  from  two  to 
three  inches  above  the  ankle-joint. 

Immediately  after  the  injurj^  and  within  twenty  minutes 
after  the  leg  was  broken,  appellants  were  called  upon,  and 
undertook  the  treatment  of  the  case. 

Dr.  Green,  upon  examination  and  measurement,  found  the 
broken  leg  to  be  three  quarters  of  an  inch  short.  In  his  evi- 
dence before  the  jury,  he  said :  '  Shortening  is  caused  by 
lapping  of  bones ;  the  upper  fragment  of  the  smaller  bone 


182  CIVIL   MALPEACTICE. 

has  slipped  past  the  lower  fragment,  and  makes  a  promi- 
nence. That  is  the  case  with  both  bones.  There  is  lapping 
of  three  fourths  of  an  inch,  producing  shortening.' 

This  witness  also  testified  :  '  The  first  duty  of  a  surgeon 
is  to  adjust  the  fracture.  I  mean  by  that,  extension  or  pull- 
ing out  the  same  as  well  bone.  My  practice  is  to  set  the 
bone  anyhow.  If  I  find  the  patient  too  nervous  without,  or 
there  is  too  great  rigidity  of  the  muscles,  I  put  them  binder 
the  influence  of  chloroform,  if  they  cannot  stand  it  without, 
and  if  the  patient  would  not  allow  a  proper  adjustment  of 
the  fracture,  I  would  abandon  the  case.  The  fragment  can- 
not be  properly  adjusted  without  extension  and  counter-ex- 
tension. Counter-extension  means  holding  it,  and  extension 
extending  it.  It  is  done  by  pulling  it  out  the  proper  length 
and  holding  it  there.' 

We  have  given  this  portion  of  Dr.  Green's  evidence  as  he 
gave  it  to  the  jury,  for  the  reason  that  his  testimony  is 
directly  in  point,  and  he  seems  to  be  skilled  in  his  profes- 
sion. 

According  to  the  medical  testimony  before  the  jury,  it  was 
the  duty  of  appellants,  when  they  were  employed  as  sur- 
geons to  treat  the  broken  limb,  to  adjust  the  fracture,  and 
extend. the  limb  to  its  original  length  ;  and  when  this  was 
accomplished,  and  the  bones  placed  in  opposition,  use  those 
appliances  in  general  use  among  surgeons  which  are  best  cal- 
culated to  and  will  hold  the  limb  in  proper  position  and  at 
its  original  length.     Was  this  done  by  appellants  ? 

When  the  fracture  was  adjusted,  they  do  not  pretend  ex- 
tension or  counter-extension  was  used. 

The  excuse  for  not  extending  the  limb  and  using  counter- 
extension  to  hold  it  to  its  proper  position,  was  on  account  of 
extreme  tenderness  and  swelling. 

This  excuse  is,  however,  in  conflict  with  the  testimony  of 
several  witnesses  who  were  present  at  the  time.  Appellants 
were  called  upon  to  adjust  the  fracture  within  twenty  or 
thirty  minutes  after  the  bones  were  broken.  While  the 
limb  may  have  become  swollen  immediately  after  the  injury, 


FEACTURES  NEAR  ANICLE- JOINT.  183 

yet  it  is  unreasonable  to  suppose  swelling  would  have  oc- 
curred so  soon,  or  that  degree  of  tenderness  then  existed  that 
would  manifest  itself  a  few  days  after  the  accident. 

But  upon  this  point  we  are  not,  however,  left  to  conject- 
ure. It  was  proven  by  several  witnesses  who  were  present, 
that  no  swelling  of  the  limb  had  occurred  when  the  fracture 
was  adjusted  and  placed  in  splints  by  appellants. 

It  is  true  appellants  claim  that  extension  and  counter-ex- 
tension were  attempted  some  days  after  the  fracture  was 
adjusted,  and  the  patient  could  not  endure  it ;  but  it  does  not 
satisfactorily  appear  that  the  ankle-joint  was  injured,  or  the 
fracture  so  near  it  as  to  interfere  with  proper  treatment,  but 
independent  of  this  no  good  reason  is  shown  why  extension 
and  counter-extension  was  not  used  in  the  first  instance. 

The  shortening  of  the  limb,  the  prominence  produced  by 
the  lapping  of  the  bones  spoken  of  by  Dr.  Green,  the  ina- 
bility of  appellee  to  use  her  leg  in  walking  without  pain,  the 
jury  no  doubt  concluded  from  the  evidence,  were  to  be  at- 
tributed to  the  fact  that  the  bones  were  not  at  the  proper 
time  placed  in  opposition,  and  the  limbs  extended  and  held 
in  position,  as  might  have  been  done  by  the  exercise  of  rea- 
sonable skill  which  is  required  of  a  surgeon  in  the  practice 
of  his  profession. 

While  we  are  willing  to  concede  the  evidence  is  somewhat 
conflicting,  yet  we  are  not  prepared  to  say,  upon  considera- 
tion of  all  the  testimony,  the  jury  were  not  justified  in  ar- 
riving at  the  conclusion  reached  by  the  verdict. 

It  is  also  claimed  by  appellants  that  the  third  instruction 
given  for  appellee  was  improper,  which  was  as  follows :  — 

'  3d.  That  if  you  believe,  from  the  evidence,  that  in  the 
treatment  of  fractures  of  bones  regard  should  be  had  to  the 
direction  in  which  the  break  occurred ;  and  if  the  jury  be- 
lieve, from  the  evidence,  that  the  fracture  of  bones  of  the 
plaintiff,  which  the  defendants  treated,  required  extension  in 
order  to  secure  the  proper  adjustment  of  the  parts  to  each 
other,  and  that  the  defendants  did  not  use  any  means  to 
secure  extension,  but  by  a  want  of  skill   or  by  negligence 


184  CIVIL  MALPEACTICE. 

suffered  the  broken  fragment  to  be  or  become  misplaced, 
and  that  thereby  the  plaintiff  has  suffered  and  become  per- 
manently lame  and  disabled,  as  charged  in  the  declaration, 
you  should  find  defendants  guilty.' 

It  is  suggested  by  appellants, '  If  inflammation,  tenderness, 
complication  of  joint  and  circulation  admitted  of  extension 
and  counter-extension,  then  it  was  appellants'  duty  to  use  it, 
and  not  otherwise.' 

While  this  is  true,  appellants  could  not  be  held  responsible 
on  account  of  a  failure  to  use  extension  and  counter- extension, 
if  the  condition  of  the  patient  and  fracture  were  such  that 
those  appliances  could  not  be  resorted  to  or  endured,  yet  we 
fail  to  perceive  wherein  the  instruction  could  mislead  the  jury 
in  that  regard. 

If  the  character  of  the  injury  received  was  such  that  ap- 
pellee could  not  endure  extension  and  counter-extension,  then 
a  failure  to  resort  to  those  appliances  would,  not  show  a  want 
of  skill  or  negligence  on  the  part  of  appellants. 

The  jury  were  expressly  informed  by  the  instruction,  that 
the  injury  of  which  appellee  complains  must  have  arisen 
from  the  want  of  skill  or  negligence  of  appellants  in  suffering 
the  broken  fragment  to  become  displaced. 

It  is  also  urged  that  appellee's  second,  fourth,  and  fifth 
instructions  were  argumentative  and  calculated  to  mislead. 
We  do  not  so  regard  them.  They  state  the  law  involved 
substantially  correct,  and  they  contain  nothing  calculated  to 
mislead  the  jury. 

The  appellant's  twelfth  instruction  the  court  modified.  In 
this  we  perceive  no  error. 

The  instruction  as  asked  announced  the  rule  that  if  appel- 
lants possessed  ordinary  skill  they  could  not  be  held  liable, 
whether  they  used  ordinary  skill  or  not. 

A  surgeon,  in  order  to  relieve  himself  of  responsibility, 
must  not  only  possess,  but  in  the  practice  of  the  profession 
must  use,  ordinary  skill. 

As  the  record  discloses  no  substantial  error,  the  judgment 
will  be  affirmed.  Affirmed.'''' 


FRACTUEES   NEAR  ANKLE-JOINT.  185 

The  principal  reason  assigned  in  the  decision  of  the  Su- 
preme Court,  cited  supra,  for  affirming  the  judgment  of  the 
lower  court,  is  that  the  facts  in  the  case  were  "  passed  upon 
by  two  juries,  each  finding  the  same  way."  Notwithstand- 
ing it  is  an  acknowledged  principle  that  juries  are  confined 
to  the  investigation  and  consideration  of  facts,  and  to  the 
application  of  the  law  as  laid  down  by  the  court,  observation, 
in  cases  in  which  raih'oad  or  other  corporations  and  profes- 
sional men  are  parties,  show  that  these,  as  opposed  to  the 
individual  plaintiff,  have  very  little  chance.  Under  such 
circumstances,  juries  have  opinions  of  their  own,  usurping 
the  functions  of  the  witness,  or  have  a  law  of  their  own, 
usurping  the  functions  of  the  court.  For  this  they  once 
might  have  been  impeached.  Now,  the  aggrieved  party 
may  move  for  a  new  trial  with  its  attendant  expenses,  or  if 
this  be  denied  he  may  appeal  to  a  higher  court.  The  reason, 
given  by  legal,  gentlemen,  why  the  verdict  of  a  jury  should 
not  be  disturbed  by  the  appellate  court,  except  the  bill  of 
exceptions  show  manifest  injustice,  is,  that  testimony  as  it 
falls  from  the  lips  of  the  witness  maybe  made  to  appear 
quite  difiierently  when  put  on  paper,  and  that  as  much  may 
be  inferred  from  the  appearance  of  the  witness  and  his  man- 
ner of  giving  his  testimony  as  from  the  testimony  itself. 
This,  doubtless,  is  true,  and  I  am  not  prepared  to  say  that 
the  verdicts  and  decision  in  the  case  are  wrong ;  but  I  am 
prepared  to  say,  —  and  in  this  I  will  be  sustained  by  the  best 
authorities  in  surgery,  men  whose  opportunities  for  studying 
such  accidents  and  experience  in  treating  them  far  exceeds 
that  of  any  or  all  the  medical  experts  in  the  case,  —  that  "ex- 
tension "  by  adhesive  plaster  strips,  gaiters,  handkerchiefs, 
&c.,  is  not,  as  a  rule,  applied  in  fractures  of  the  middle  or 
lower  third  of  the  leg,  nor  can  it  be  without  running  other 
and  graver  risks  than  shortening  of  three  fourths  of  an  inch 
or  less.  Of  these  methods  that  by  adhesive  strips  is  the  most 
unobjectionable,  and  this  method  is  generally  impracticable, 
for  the  reason  that  the  short  extent  of  surface  upon  the  sides 
of  the  limb  below  the  point  of  fracture,  to  which  the  strips 


186  CIVIL  MALPEACTICE. 

are  applied,  will  not  sustain  the  weight  required  to  oyercome 
the  contraction  of  the  muscles  which  cause  the  shortening. 
In  fractures  of  the  femur,  where  the  strips  may  be  from 
eighteen  to  twenty-four  inches  in  length,  with  surface  suffi- 
cient to  bind  them  to  the  limb  with  auxiliary  strips  carried 
across  the  limb  diagonally,  they  constantly  give  way  under 
a  drawing  force  of  twelve  to  twenty  pounds.  Had  excoria- 
tions, erysipelas,  or  gangrene  set  in,  in  such  a  case,  from  such 
measures  used  to  make  extension,  and  these  were  the  dan- 
gers to  be  apprehended  in  such  a  case,  the  defendants  would 
have  alike  been  censured.  Juries  do  not  understand  the 
difficulties  which  the  most  experienced  surgeons  find  in 
many  of  their  cases.  No  hypothetical  case  can  be  possibly 
stated  whereby  a  surgeon  can  determine,  positively,  what 
treatment  should  have  been  adopted  in  a  given  case.  Only 
when  the  grossest  and  most  palpable  negligence  of  well 
established  surgical  or  medical  principles  is. shown  can  any 
positively  unfavorable  opinion  be  sustained. 

If  medical  evidence  is  little  else  than  a  reference  to  au- 
thority, and  it  would  not  be  very  difficult  to  show  that  this 
is  a  fact,  then  if  standard  surgical  books  were  permitted  in 
evidence,  as  in  these  cases  they  should  be,  an  hour's  reading 
therefrom  would  throw  more  light  upon  a  given  question 
than  all  the  so-styled  "  expert "  evidence  usually  offered  in 
such  trials.  The  solemn  act  of  sincerity  between  the  author 
and  the  world  by  the  act  of  publication  is  quite  as  binding 
as  an  oath,  under  which  the  expert  is  to  give  an  opinion 
founded  upon  the  general  principles  of  his  science,  as  laid 
down  by  these  authorities.  While  it  is  right  that  the  ex- 
pert's experience,  ability,  and  sense  of  right  should  receive 
due  acknowledgment  at  the  hands  of  courts  and  juries,  at 
the  same  time  it  must  be  remembered  that  all  these  circum- 
stances are  subject  to  great  abuse.  Experience  and  gray 
hairs  are  often  appealed  to ;  especially  do  juries  adduce 
these  as  evidence  of  great  ability.  Of  the  two,  the  "  gray 
hairs  "  are  often  of  the  most  value.  In  respect  to  "  experi- 
ence," a  writer  has  said:  "  I  believe  that  no  small  portion  of 


FRACTURES  NEAR  ANKLE-JOINT.  187 

that  odious  discrepancy  whicli  has  prevailed  among  medical 
"witnesses,  whereby  the  lustre  of  medicine  itself  has  been 
tarnished,  is  chargeable  to  the  prevalent  affectation  of  being 
men  of  experience  rather  than  men  of  learning.''^ 

It  is  usually  such  men  whom  we  hear  decrying  medical 
authorities.  It  was  in  rebuking  such  a  one  that  the  Hon. 
Chief  Justice  Dallas  said,  "  I  will  not  sit  here  and  hear 
science  reviled  by  ignorant  tongues."  The  discovery  and 
establishment  of  truth  is  the  ostensible  function  of  courts  of 
justice.  This  can  only  be  accomplished  by  the  production 
of  the  best  evidence  the  case  is  capable  of,  and  this,  in  the 
cases  under  consideration,  is  not  best  determined  through 
the  oral  testimony  of  many  that  are  offered  as  medical  ex- 
perts. 

Almond  v.  Nugent.^ 

"  This  action  was  brought  against  W.  R.  Nugent  and  M. 
D.  Sherrick,  who  were  partners  in  the  practice  of  medicine 
and  surgery.  The  plaintiff  claimed  to  recover  for  alleged 
want  of  skill,  care,  and  diligence  on  the  part  of  defendants, 
who  were  called  by  him  to  treat  a  compound  oblique  fracture 
of  both  bones  of  his  right  leg,  between  the  ankle  and  the 
knee.  The  defendant  Sherrick  died,  and  the  action  was 
tried  by  a  jury  as  against  Nugent  alone.  There  was  a  ver- 
dict and  judgment  for  plaintiff  for  $2,000.  The  defendant 
appeals. 

Cole,  J.  The  court  gave  to  the  jury  the  following  in- 
structions, asked  by  the  plaintiff,  to  wit :  1.  That  the  gen- 
eral principles  of  law  defining  the  civil  responsibilities  of 
physicians  and  surgeons  are  the  same  as  those  that  apply  to 
and  govern  the  conduct  of  lawyers,  engineers,  mechanics, 
ship-builders,  brokers,  and  other  classes  of  men  whose  em- 
ployments require  them  to  transact  business  requiring  special 
skill  and  knowledge. 

2.  The  implied  contract  of  the  physician  and  surgeon  is, 
that  he  possesses  and  will  employ,  in  the  treatment  of  the 
case,   such  reasonable  skill   and  diligence   as  are  ordinarily 

1  34  Iowa,  300. 


188  CIVIL  MALPRACTICE. 

exercised  in  his  profession  by  thoroughly  educated  physicians 
and  surgeons ;  and  in  judging  of  the  degree  of  skill  re- 
quired, regard  is  to  be  had  to  the  advanced  state  of  the  pro- 
fession at  the  time  of  treatment. 

3.  The  standard  of  ordinary  skill  in  the  profession  is  on 
the  advance,  and  he  who  would  not  be  found  wanting  must 
apply  himself  with  diligence,  to  the  most  accredited  sources 
of  knowledge.  He  is  bound  to  be  up  to  the  improvements 
of  the  da}^  for  the  patient  is  entitled  to  the  benefit  of  these 
increased  lights.  The  law  has  no  allowance  for  quackery. 
It  demands  qualifications  in  the  profession.  He  is  bound  to 
exercise  his  art  or  profession  rightly  and  truly  as  he  ought ; 
for  less  than  this  he  will  be  liable  in  damages  to  the  injured 
party.  Each  of  these  instructions  was  duly  excepted  to, 
and  the  giving  of  them  is  now  assigned  as  error. 

In  the  case  of  Smothers  v.  Hanks,  34  Iowa,  286,  we  had 
occasion  to  determine  the  correct  legal  standard  of  the  skill, 
care,  and  diligence  required  of  physicians,  surgeons,  &c. 
That  standard  is  the  reasonable  skill,  care,  and  diligence  or- 
dinarily exercised  by  the  members  of  the  profession  at  the 
time.  The  idea  is  that  degree  of  skill  and  diligence  which 
ordinarily  characterizes  the  profession  as  a  whole,  or  gen- 
erally ;  and  not  that  of  any  particular  class  or  portion  of  the 
profession.  In  that  case  we  reviewed  the  case  of  McCandless 
V.  McWTia,  22  Penn.  St.  261,  upon  Judge  Woodward's 
opinion,  from  which  much  of  the  language  of  each  of  the 
foregoing  instructions  was  taken.  We  found  that  it  was 
directly  decided  in  that  case,  that  the  general  principles  of 
law  defining  the  civil  responsibilities  of  physicians  were  not 
the  same  as  apply  to  engineers,  mechanics,  and  ship-builders. 
And  we  also  found  that  it  was  not  there  decided  that  the 
skill  and  diligence  required  of  physicians  and  surgeons  was 
that  ordinarily  exercised  by  thoroughly  educated  members 
of  that  profession  ;  and  it  may  be  further  remarked,  that  the 
closing  sentence  of  the  third  instruction  was  also  taken  from 
the  same  opinion,  and  repeats  the  error  of  that  learned 
judge,  who  applies  the  pithy  saying  of  Fitzherbert,  that  '  it 


EKACTTJEES  NEAR  ANKLE-JOES'T.  189 

is  the  duty  of  every  artificer  to  exercise  his  art  rightly  and 
truly  as  he  ought,'  to  j^'^'ofessional  men  as  well  as  artificers, 
the  very  error  into  which  the  nisi  prius  court  had  fallen,  and 
for  which  its  judgment  was,  by  the  same  opinion,  reversed. 
There  was  error,  therefore,  in  each  of  the  instructions  above 
set  out. 

On  the  trial  the  court  admitted  evidence  of  the  declara- 
tions of  the  partner  Sherrick,  who  was  then  deceased.  It  is 
unnecessary  to  review  the  several  questions  and  answers 
seriatim.  Only  those  declarations  were  competent  which 
were  made  by  the  partner  while  engaged  in,  or  which  were 
connected  with,  the  business  of  the  partnership.  UjDon  the 
subject  of  exemplary  damages  we  need  only  remark,  that 
we  see  nothing  in  the  case,  as  now  presented,  justifying  such 
damages,  or  showing  that  the  jury  allowed  such. 

Judgment  reversed^ 

Slater  v.  Baker  and  Stapleton.i 

"  Curia.  !.■  It  is  objected  that  this  is  laid  to  be  a  joint 
undertaking,  and  therefore  ought  to  be  proved,  and  we  are 
of  the  opinion  that  it  ought ;  the  question,  therefore,  is 
whether  there  is  any  evidence  of  a  joint  undertaking.  We 
are  of  opinion  there  is.  Mr.  Stajjleton  denies  acting  alone, 
but  in  concurrence  with  Mr.  Baker  attends  the  plaintiff  every 
time  anything  is  done,  and  assists  jointly  with  Mr.  Baker. 
This  appears  in  evidence  and  is  sufficient,  for  there  is  no  oc- 
casion to  prove  an  express  joint  contract,  promise,  or  under- 
taking. When  an  offer  is  made  to  Baker  of  a  guinea,  Sta- 
pleton  says,  you  had  better  be  paid  all  at  least ;  they  both 
attended  plaintiff  together  every  time,  and  Stapleton  said 
we  have  consulted  and  done  for  the  best.  When  the  plain- 
tiff complained  of  what  they  had  done,  Stajjleton  considered 
himself  as  one  of  the  persons  to  join  in  the  care  of  the  leg, 
for  he  put  his  hand  on  the  knee  when  Baker  nodded,  and 
then  the  bone  cracked  ;  he  is  the  original  person  aiding  in 

1  2  Wilson,  359. 


190  CIVIL  MALPEACTICE. 

this  matter,  and  there  is  no  ground  for  this  objection.  When 
we  consider  the  good  character  of  Baher,  we  cannot  well 
conceive  why  he  acted  in  the  manner  he  did,  but  many  men 
very  skilful  in  their  profession  have  frequently  acted  out  of 
the  common  way  for  the  sake  of  trying  experiments.  Sev- 
eral of  the  witnesses  proved  that  the  callus  was  formed,  and 
that  it  was  proper  to  remove  plaintiff  home,  that  he  was  free 
from  pain  and  able  to  walk  with  crutches.  We  cannot  con- 
ceive what  the  nature  of  the  instrument  made  use  of  is,  why 
did  Baker  put  it  on  when  he  said  that  plaintiff  had  fallen 
into  good  hands,  and  when  the  plaintiff  only  sent  for  him  to 
take  off  the  bandages.  It  seems  as  if  Baker  wanted  to  try 
an  experiment  with  this  new  instrument. 

2.  It  is  objected  that  this  is  not  the  proper  action,  and 
that  it  ought  to  have  been  trespass  vi  et  armis  ;  in  answer 
to  this  it  appears  from  the  evidence  of  the  surgeons,  that  it 
was  improper  to  disunite  the  callus  without  consent.  This  is 
the  usage  and  law  of  surgeons  ;  then  it  was  ignorance  and 
unskilfulness  in  that  particular  to  do  contrary  to  the  rule  of 
the  profession,  what  no  surgeon  ought  to  have  done  ;  and  in- 
deed it  is  reasonable  that  a  patient  should  be  told  what  is 
about  to  be  done  to  him,  that  he  may  take  courage  and  put 
himself  in  a  situation  to  enable  him  to  undergo  the  opera- 
tion. 

3.  That  the  plaintiff  ought  to  receive  a  satisfaction  for  the 
injury,  seems  to  be  admitted ;  but  then  it  is  said  the  defend- 
ants ought  to  have  charged  vi  et  armu.  The  court  will  not 
look  with  eagle  eyes  to  see  whether  the  evidence  applies  ex- 
actly or  not  to  the  case  ;  v/hen  they  can  see  the  plaintiff  has 
obtained  a  verdict  for  such  damages  as  he  deserves,  they  will 
establish  such  verdict  if  it  be  possible.  For  anything  that 
appears  to  the  court  this  was  the  first  experiment  made  with 
this  new  instrument,  and  if  it  was,  it  was  a  rash  action,  and 
he  who  acts  rashly  acts  ignorantly  ;  and  although  the  defend- 
ants in  general  may  be  as  skifful  in  their  respective  profes- 
sions as  any  two  gentlemen  in  England,  yet  the  court  can- 
not help  saying,  that  in  this  particular  case  they  have  acted 


FEACTUEES  NEAR  ANKLE-JOINT.  191 

ignorantly  and  unskilfully,  contrary  to  tlie  known  rule  and 
usage  of  surgeons. 

Judgment  for  the  plaintiff  per  totam  ■curiam.'''' 

McCandless  v.  McWha.^ 

"  The  opinion  of  a  majority  of  the  court  was  delivered  by 
Woodward,  J.  This  was  an  action  on  the  case  by  the  de- 
fendant in  error  against  the  plaintiff  in  error,  a  respectable 
physician  and  surgeon,  for  malpractice  in  setting  a  broken 
leg  of  the  plaintiff ;  and  the  only  question  of  any  importance 
presented  for  our  consideration  is,  whether  the  court  erred 
in  charging  '  that  the  defendant  was  bound  to  bring  to  his 
aid  the  skill  necessary  for  a  surgeon  to  set  the  leg  so  as  to 
make  it  straight  and  of  equal  length  with  the  other  when 
healed ;  and  if  he  did  not,  he  was  accountable  in  damages,  — 
just  as  a  stone-mason  or  bricklayer  would  be  in  building  a 
wall  of  poor  materials,  and  the  wall  fell  down,  or  if  he  built 
a  chimney  and  it  should  smoke  by  reason  of  a  want  of  skill 
in  its  construction.'  It  is  impossible  to  sustain  this  proposi- 
tion. It  is  not  true  in  the  abstract,  and  if  it  were  true,  it 
was  inapplicable  to  the  circumstances  of  the  case  under  in- 
vestigation. The  implied  contract  of  a  physician  or  surgeon 
is  to  restore  a  fractured  limb  to  its  natural  perfectness  ;  not 
to  cure,  but  to  treat  the  case  with  diligence  and  skill.  The 
fracture  may  be  so  complicated  that  no  skill  vouchsafed  to 
man  can  restore  original  straightness  and  length,  or  the  pa- 
tient may,  by  wilful  disregard  of  the  surgeon's  directions, 
impair  the  effect  of  the  best  conceived  measures.  He  deals 
not  with  insensate  matter  like  the  the  stone-mason  or  brick- 
layer, who  can  choose  their  materials  and  adjust  them  ac- 
cording to  mathematical  lines ;  but  he  has  a  suffering  human 
being  to  treat,  a  nervous  system  to  tranquillize,  and  a  will  to 
regulate  and  control.  The  evidence  before  us  makes  this 
strong  distinction  between  surgery  and  masonry,  and  shows 
how  the  judge's  inapt  illustration  was  calculated  to  lead 
1  22  Harris  (Penu.)  R.  261. 


192  CIVIL  MALPRACTICE. 

away  the  minds  of  the  jury  from  the  true  point  of  the  cause. 
Dr.  Duncan  describes  the  fracture  as  an  obhque  comminuted 
one  of  the  tibia  and  fibula  of  the  leg,  about  half  way  be- 
tween the  ankle  and  the  knee  ;  and  he  says  that  on  one  oc- 
casion when  he  was  present  at  a  dressing  of  the  limb,  he 
heard  Dr.  McCandless  complain  that  McWha  had  loosened 
the  bandages,  and  he  told  him  that  if  he  loosed  them  his  leg 
might  be  shortened ;  but  McWha  justified  his  act  because 
his  leg  was  painful.  Now,  upon  such  a  state  of  facts,  the 
question  was  not  whether  the  doctor  had  brought  to  the 
case  skill  enough  to  make  the  leg  as  straight  and  long  as 
the  other,  but  whether  he  had  employed  such  reasonable 
skill  and  diligence,  as  are  ordinarily  exercised  in  his  pro- 
fession. For  less  than  this  he  is  responsible  in  damages, 
but  if  he  be  held  to  the  measure  laid  down  by  the  com-t 
below,  the  implied  contract  on  his  part  amounts  to  a  war- 
ranty of  cure ;  for  which  there  is  no  authority  in  law.  In 
a  fracture  like  this,  a  shortening  of  the  limb  is  sometimes  an 
inevitable  consequence.  Dr.  Dorsey,  in  his  Elements  of  Sur- 
gery, speaking  of  broken  legs  below  the  knee,  says :  '  The 
fracture  of  both  bones  is  most  frequent ;  it  may  be  trans- 
verse or  oblique,  simple  or  compound,  comminuted  or  single. 
The  fragments  are  occasionally  displaced  in  every  direction. 
In  transverse  fractures  there  is  generally  no  shortening  of 
the  limb,  but  in  those  that  are  oblique  the  leg  is  generally 
shortened.'  And  from  Ferguson's  System  of  Practical  Sur- 
gery, cited  in  the  argument,  we  learn  that  'the  fissure  in 
the  tibia  may  be  oblique,  and  the  fragments,  two  or  more, 
may  have  a  constant  tendency  to  become  displaced  ;  there 
may  be  great  irritability  of  the  muscles,  particularly  during 
the  early  part  of  the  treatment ;  great  restlessness  of  the 
patient  or  unwillingness  to  submit  to  the  requisite  confine- 
ment ;  in  short,  a  vast  variety  of  circumstances  likely  to 
cause  difficulty  in  the  treatment.'  Not  to  multiply  author- 
ities, these  are  sufficient  to  show  that  the  rule  prescribed  by 
the  court  is  too  rigid  for  this  class  of  cases ;  that  shortening 
of  the  leg  may  result  from   the  most   careful   and  approved 


FEACTUEES  NEAR  ANKLE-JOINT.  193 

practice,  or  from  the  misconduct  of  the  patient.  Nothing 
can  be  more  clear  than  that  it  is  the  duty  of  the  patient  to 
cooperate  with  his  professional  adviser,  and  to  conform  to 
the  necessary  prescriptions  ;  but  if  he  will  not,  or  under 
pressure  of  pain  cannot,  his  neglect  is  his  own  wrong  or  mis- 
fortune, for  which  he  has  no  right  to  hold  his  surgeon  re- 
sponsible. No  man  may  take  advantage  of  his  own  wrong, 
or  charge  his  misfortunes  to  the  account  of  another.  We  do 
not  mean  to  intimate  an  opinion  that  this  case  was  properly 
treated,  or  that  the  leg  could  not  have  been  restored  to  the 
length  of  its  fellow  ;  but  in  view  of  the  diversified  circum- 
stances that  attend  cases  of  this  sort,  it  was  very  important 
that  the  true  rule  of  professional  responsibility  should  have 
been  given  to  the  jury,  with  instructions  that  they  should 
inquire,  from  all  the  facts  in  proof,  whether  the  defendant 
had  come  up  to  it  or  stopped  short  of  it.  We  have  stated 
the  rule  to  be  reasonable  skill  and  diligence,  by  which  we 
mean  such  as  thoroughly  educated  surgeons  ordinarily  em- 
ploy. If  more  than  this  is  expected,  it  must  be  expressly 
stipulated  for ;  but  this  much  every  patient  has  a  right  to 
demand  in  virtue  of  the  implied  contract,  which  results  from 
intrusting  his  case  to  a  person  holding  himself  out  to  the 
world  as  qualified  to  practise  this  important  profession.  If 
a  patient  applies  to  a  man  of  different  occupation  or  employ- 
ment for  his  assistance,  who  either  does  not  exert  his  skill  or 
administer  improper  remedies  according  to  the  best  of  his 
abilities,  such  person  is  not  liable  in  damages ;  but  if  he  ap- 
plies to  a  Surgeon^  and  he  treats  him  improperly,  he  is  lia- 
ble to  an  action  even  though  he  undertook  gratis  to  attend 
the  patient,  because  his  situation  implies  skill  in  surgery. 
Per  Heath,  J.,  in  Skiels  v.  Blackburn,  1  Hen.  Blac.  161  ; 
Seare  v.  Prentice,  8  East,  348.  The  principle  is  contained 
in  the  pithy  saying  of  Fitzherbert,  that  '  it  is  the  duty  of 
every  artificer  to  exercise  his  art  rightly  and  truly  as  he 
ought.'  This  is  peculiarly  the  duty  of  professional  practi- 
tioners, to  whom  the  highest  interests  of  man  are  often  nec- 
essarily intrusted.     The  law  has  no  allowance  for  quackery. 

13 


194  CIVIL  MALPRACTICE. 

It  demands  qualification  in  the  profession  practised,  not  ex- 
traordinary skill  such  as  belongs  only  to  few  men  of  rare 
genius  and  endowments,  but  that  degree  which  ordinarily 
characterizes  the  profession.  And  in  judging  of  this  degree 
of  skill,  in  a  given  case,  regard  is  to  be  had  to  the  advanced 
state  of  the  profession  at  the  time. 

Discoveries  in  the  natural  sciences  for  the  last  half  century 
have  exerted  a  sensible  influence  on  all  the  learned  profes- 
sions, but  especially  on  that  of  medicine,  whose  circle  of 
truths  has  been  relatively  much  enlarged,  and  besides,  there 
has  been  a  positive  progress  in  that  profession  resulting  from 
the  studies,  the  experiments,  and  the  diversified  practice  of 
its  professors.  The  patient  is  entitled  to  the  benefit  of  these 
increased  lights.  The  physician  or  surgeon  who  assumes  to 
exercise  the  healing  art  is  bound  to  be  up  to  the  improve- 
ments of  the  day.  The  standard  of  ordinary  skill  is  on  the 
advance  ;  and  he  who  would  not  be  found  wanting,  must 
apply  himself  with  all  diligence  to  the  most  accredited 
sources  of  knowledge. 

If,  in  view  of  the  principles  here  stated,  Dr.  McCandless 
shall  be  found,  on  re-trial,  to  have  performed  his  whole  duty 
to  his  patient,  and  that  any  defects  in  the  limb  are  due  to 
the  patient's  fault,  or  to  the  peculiarities  of  the  fracture, 
there  ought  to  be  no  recovery  in  damages.  The  only  re- 
maining error  assigned  is  scarcely  worthy  of  notice.  The 
action  depended  so  entirely  on  its  own  circumstances  that 
the  observation  of  the  court  as  to  the  policy  of  such  suits 
was  irrelevant,  and  we  may  fairly  presume  harmless.  But 
for  misdirection  on  the  other  point  the  judgment  is  reversed, 
and  a  venire  de  novo  awarded." 

McCandless  v.  McWha.i 

"  LowKiE,  J.  The  ordinary  science,  like  the  ordinary  lan- 
guage and  customs  of  every-day-life,  is  presumed  in  the 
trial  of  causes  to  be  known   to   both  court  and  jury;  and 

1  25  Pa.  95. 


FRACTURES  NEAR  ANKLE^OINT.  195 

they  make  use  of  it  in  weighing  the  evidence  submitted  to 
them,  and  in  estimating  the  importance  of  the  ascertained 
facts.  But  if  there  be  facts,  which  are  really  of  influence 
and  importance  in  a  cause,  and  their  influence  and  impor- 
tance are  not  recognized  by  the  court  as  matters  of  legal  sci- 
ence, or  do  not  fall  within  the  province  of  the  science  of 
common  life,  then,  by  themselves,  they  must  be  practically 
irrelevant,  and  can  be  used  only  by  appealing  to  mere  prej- 
udice ;  for  they  can  have  no  intelligent  application  to  the 
matter  in  dispute.  If  their  relevancy  depends  upon  special 
scientific  principles,  of  which  the  court  is  not  expected  to 
take  judicial  notice,  and  of  which  the  jury  are  most  prob- 
ably ignorant,  then,  without  those  principles,  their  relevancy 
cannot  appear.  When,  therefore,  such  facts  are  offered  to 
be  proved,  they  must  be  rejected,  unless  offered  in  connec- 
tion with,  or  (better  still)  after  sufficient  evidence  of  the  sci- 
entific principles  that  reveal  their  importance.  In  case  it 
was  not  thought  prudent  to  rely  upon  the  ordinary  science 
which  the  jury  is  expected  to  possess  for  the  principle,  that 
a  fractured  limb  of  an  intemperate  man  is  more  difficult  to 
cure  than  that  of  a  temperate  one  ;  but  we  have  evidence 
of  it  from  men  of  science,  and  such  is  the  usual  practice. 
Now  very  certainly  it  is  not  a  well-known  principle  of  ordi- 
nary science  that,  in  judging  of  the  difficulty  of  such  a  case, 
it  is  important  to  know,  not  only  the  degree  of  intemperance 
then  existing,  but  hoAV  long  it  has  lasted  ;  and  this  principle 
was  neither  proved  nor  offered  to  be.  It  was,  therefore, 
proper  for  the  court,  under  these  circumstances,  to  refuse  to 
allow  the  patient's  habits  and  character,  in  this  respect,  to 
be  put  in  issue  for  an  indefinite  period  backward.  It  was 
surely  enough  to  lay  it  open  for  the  seven  years  previous  to 
the  injury,  if  not  too  much.  Judgment  affirmed.'''' 


196  CIVIL  MALPRACTICE. 


Bellingee,  V.  Ceaigue.i 

"  MOEGAisr,  J.  In  this  action  the  plaintiff  claims  damages 
of  the  defendant  for  the  loss  of  services  of  his  wife,  on  ac- 
count of  the  alleged  malpractice  of  the  defendant,  who,  as 
surgeon  and  physician,  was  employed  to  set,  reduce,  and  cure 
a  broken  leg  of  plaintiff's  wife,  but  by  negligence,  ignorance, 
and  unskilfulness  in  his  profession,  failed  to  cure  it ;  and, 
under  his  treatment  it  in  fact  became  incurable.  In  conse- 
quence of  which  the  plaintiff  was  deprived  of  her  services 
and  put  to  great  expense  in  procuring  other  professional  aid 
and  assistance.  The  defendant  denied  the  allegations  of  the 
complaint,  and  answered  specially,  that  the  reason  why  the 
limb  did  not  heal  was  through  the  mere  negligence,  careless- 
ness, and  mismanagement  of  plaintiff's  wife.  After  issue 
was  thus  joined,  the  defendant  sued  the  plaintiff  before  a 
justice  of  the  peace  of  Little  Falls,  Herkimer  County.  The 
parties  duly  appeared  before  the  justice  and  joined  issue. 
The  defendant,  who  was  plaintiff  before  the  justice,  com- 
plained and  alleged  that  Bellinger  was  indebted  to  him  in 
the  sum  of  $100  for  medicines  and  professional  services,  and 
especially  for  prof essional  services  and  skill  bestowed  in  at- 
tending the  wife  of  Bellinger^  and  in  setting,  secu7n7ig,  and 
attending  to  a  fractured  limb  of  BelUnger^s  wife.  Bellin- 
ger's answer  before  the  justice  denied  each  and  every  allega- 
tion of  the  complainant.  It  also  revealed  that  the  services 
were  so  unskilfully  performed  that  they  were  of  no  value. 
And  Bellinger  claimed  judgment  for  costs  of  suit. 

On  the  trial  before  the  justice  Bellinger  informed  the  jus- 
tice that  he  withdrew  his  second  answer,  and  all  claim  and 
defence  founded  upon  any  want  of  care  in  Craigue.  Craigue 
objected  to  its  withdrawal,  but  the  justice  overruled  the  ob- 
jection. The  justice,  therefore,  on  proof  of  Craigue's  bill, 
for  attendance  upon  Mrs.  Bellinger,  allowed  for  every  visit, 
and  the  price  as  charged  by  him.     The  justice  says  that  he 

1  31  Barb.  534. 


FRACTURES  NEAR  ANKLE-JOINT.  197 

did  not  in  fact  take  into  consideration  the  claim  for  malprac- 
tice. Judgment  was  rendered  for  Bellinger  for  tlie  amount 
of  his  bill,  $15.50,  besides  costs  of  action.  The  defendant 
in  this  action.  Dr.  Craigue,  obtained  permission  to  put  in  a 
supplemental  answer  to  the  plaintiff's  complaint,  and  to  set 
up  the  justice's  judgment  thus  obtained  as  a  bar  to  the  plain- 
tiff's demand. 

The  cause  was  tried  before  Justice  Mitllin,  at  Herkimer, 
in  May,  1858 ;  and  the  plaintiff,  Bellinger,  having  given 
evidence  tending  to  prove  malpractice,  the  defendant,  under 
objections  from  the  plaintiff's  counsel,  was  allowed  to  prove 
the  pleadings,  proceedings,  and  judgment  before  the  justice, 
as  above  detailed.  Justice  Mullin,  however,  reserved  the 
question  as  to  the  legal  effect  of  these  proceedings,  and 
finally  overruled  the  defence ;  and  the  defendant  went  into 
proof  on  his  part  tending  to  show  that  it  was  not  his,  but 
Mrs.  Bellinger's  fault,  that  the  limb  did  not  get  well.  The 
question  of  negligence  was  submitted  to  the  jury,  and  they 
found  a  verdict  against  the  defendant,  and  in  favor  of  the 
plaintiff,  for  nine  hundred  dollars  damages.  Exceptions 
being  taken  by  the  defendant,  the  question  comes  up,  on 
appeal  to  this  court,  whether  the  judgment  of  the  justice,  at 
Little  Falls,  between  the  same  parties,  is  a  bar  to  the  plain- 
tiff's demand  in  this  action.  The  plaintiff's  counsel  makes 
a  point,  or  rather  a  suggestion,  that  the  limited  jurisdiction 
of  a  justice's  court  will  in  some  way  impair  or  diminish  the 
conclusiveness  of  his  judgments  as  to  matters  within  his  ju- 
risdiction. He,  however,  finally  admits  that  it  is  too  late  to 
ask  a  decision  against  the  conclusiveness  of  a  justice's  judg- 
ment on  this  ground.  And  in  this  concession,  which  is 
doubtless  due  to  the  authorities  in  this  country,  the  counsel 
must  see  that  it  is  the  duty  of  this  court  to  give  full  effect  to 
the  maxim,  Interest  reipublica  ut  sit  finis  litium,  by  making 
the  judgment  of  a  justice's  court  final  as  to  the  subject  mat- 
ter thereby  determined. 

There  is  also  a  suggestion  in  the  counsel's  argument,  that 
the  justice's  judgment  was  fraudulently  obtained,  and  there- 


198  CIVIL  MALPRACTICE. 

fore  it  may  be  disregarded,  or  in  some  way  weakened,  so  as 
not  to  conclude  the  parties  in  this  action.  But  it  would  not 
become  us  to  listen  to  this  suggestion,  when  there  is  no  inti- 
mation, in  the  pleadings  or  evidence,  that  the  judgment  was 
fraudulently  obtained. 

The  question,  then,  is  narrowed  down  to  the  single  point, 
whether  the  plaintiff 's  demand  in  this  action  was  adjudicated 
before  the  justice's  court.  It  may  be  conceded  that  it  was 
not  actually  litigated  there  ;  for  it  was  finally  withdrawn 
from  the  consideration  of  the  court;  and  the  justice  says 
that  he  did  not  in  fact  take  it  into  consideration.  Still  it 
cannot  be  denied  that  the  judgment  of  a  comj)etent  court  is 
not  only  conclusive  on  all  questions  actually  and  formally 
litigated,  but  to  all  questions  within  the  issue,  whether  for- 
mally litigated  or  not.  Le  Gruen  v.  G-ouverneu7',  1  John. 
Cases,  492;  Marriot  v.  Hampton,  7  T.  R.  269  ;  Davis  y. 
Tallcot,  2  Kern.  184  ;  Jones  v.  Scriven,  8  John.  R.  453 ; 
2  Smith's  Lead.  Cas.  442  (in  notes)  ;  and  see  Fidler  v. 
Cooper,  19  Wend.  285  ;  Edivards  v.  Steivart,  15  Barb.  67. 

In  this  case,  the  defence  being  withdrawn,  it  cannot  be 
said  that  it  was  actually  litigated  there ;  and  if  the  plain- 
tiff is  barred  of  his  action,  it  is  because  his  demand  was  im- 
pliedly and  necessarily  within  the  issue  joined  before  the 
justice,  and  its  determination  necessarily  included  in  the 
judgment. 

A  fact  impliedly  averred  may  be  traversed  in  the  same 
manner  as  if  it  was  expressly  averred.  Prindle  v.  Caruth- 
ers,  15  N.  Y.  Rep.  429  ;  Raiyht  v.  ITolley,  3  Wend.  263 ; 
Chambers  v.  Jones,  11  East,  406.  The  general  denial  of 
the  Code  doubtless  puts  all  the  allegations  of  the  complaint 
in  issue,  whether  expressed  or  implied.  If  the  plaintiff's 
claim  is  a  denial  of  the  defendant's  claim  before  the  justice, 
and  not  neiv  matter,  it  is  within  the  issue  tried  before  the 
justice.  But  if  it  is  new  matter,  it  was  not  within  the  issue. 
The  new  matter  mentioned  in  §  149  of  the  Code  is  that 
which  admits  and  avoids  the  cause  of  action  set  up  in  the 
complaint,  and  constitutes  a  defence.     Brazill  v.  Isham,  2 


FEACTUEE  NEAE  ANKLE-JOINT.  199 

Kern.  9;  and  see  3  Duer,  685;  12  How.  445.  It  must  be 
specially  pleaded.  McKyring  v.  BulU  16  N.  Y.  Rep.  297. 
The  denial  of  tlie  plaintiff's  complaint,  before  the  justice, 
must  therefore  be  held  and  regarded  as  putting  in  issue  all 
the  allegations  of  the  complaint,  and  as  controverting  all  the 
facts  stated  or  implied  therein;  but  it  did  not  put  in  issue 
any  neio  matter  ;  and  if  the  second  answer  constituted  new 
matter,  it  was  not  within  the  issue  formed  by  the  second 
denial.  But  was  it  new  matter  of  defence  ?  or  was  it  admis- 
sible under  the  general  denial  ?  Clearly,  if  Dr.  Craigue  had 
set  forth  the  contract  in  his  complaint,  as  the  law  would  in- 
terpret it,  he  would  have  substantially  charged  '  that,  being 
a  surgeon  and  physician,  he  undertook,  for  a  reasonable  com- 
pensation to  be  paid  to  him  by  Bellinger,  to  treat  his  wife's 
broken  limb  with  a  reasonable  degree  of  care  and  skill.' 
The  law  implies  a  promise  on  the  part  of  the  surgeon  that 
he  has  ordinary  skill,  and  that  he  will  execute  the  business 
intrusted  to  him  with  ordinary  care  and  skill.  If  he  fails  in 
this  duty  he  is  guilty  of  default  in  his  undertaking,  and  can- 
not collect  the'  pay  for  his  services,  but  is  liable  in  damages 
to  the  persons  who  employed  him.  1  Chitty  on  Cont.  482-83. 
The  contract  is  entire^  and-  'performance  is  necessary  to  en- 
title the  surgeon  to  recover  anything.  If  the  complaint  had 
expressed  such  a  contract,  and  if  it  had  alleged  before  the 
justice  that  the  doctor  had  performed  it  in  all  things  on  his 
part,  a  denial  of  these  allegations  would  have  put  the  ques- 
tion directly  in  issue.  It  would  not  be  neio  matter  to  deny 
that  the  doctor  had  performed  his  contract  as  thus  stated  in 
his  complaint ;  and  yet  it  would  be  a  full  defence  to  the 
action,  if  Bellinger  had  succeeded  in  proving  it.  The  law 
would  not  on  the  trial  presume  that  the  plaintiff  had  neg- 
lected his  duty  and  made  default  in  his  undertaking ;  for  a 
breach  of  duty,  or  negligence,  or  fraud  is  not  to  be  pre- 
sumed. Starr  v.  Peck,  1  Hill,  270.  The  burden  of  proof 
is  therefore  cast  upon  the  defendant,  to  disprove  the  allega- 
tion of  performance,  in  such  a  complaint.  But  if  he  neg- 
lects to  offer  any  such  proof,  the  fact  of  performance  is  pre- 


200  CIVIL  MALPEACTICE. 

sumed,  and  necessarily  must  be,  to  authorize  the  doctor  to 
recover  for  his  services.  The  judgment  of  the  justice  in  fa- 
vor of  the  plaintiff,  in  such  a  case,  would  imply  perform- 
ance of  the  contract  on  his  part.  The  fact  of  performance 
is  found  or  adjudicated  in  favor  of  the  doctor ;  and  I  think 
it  cannot  be  again  disputed  in  an  action  between  the  same 
parties.  Now,  although  new  matter  cannot  be  proved  under 
a  general  denial,  most  of  the  defences  which  could  have  been 
proved  under  the  old  general  issue  of  non  assumpsit^  such  as 
release,  statute  of  limitations,  insolvent  discharge,  arbitra- 
ment, &c.,  must  still  be  brought  forward  by  the  defendant 
as  matters  of  special  defence,  or  the  defendant  loses  the  ben- 
efit of  them.  These  defences  will  not  support  an  action,  but 
must  be  used,  if  at  all,  to  defeat  an  action.  It  is,  however, 
different  with  a  defence  called  a  counter  claim.  That  may 
be  used  to  sustain,  as  well  as  to  defend,  an  action.  It  may 
coexist  with  the  plaintiff's  claim,  and  is  simply  a  cross-ac- 
tion, to  enforce  a  legal  or  equitable  set-off.  It  admits  the 
plaintiff's  demand,  but  seeks  to  reduce  it,  or  even  extinguish 
it,  by  legal  or  equitable  set-off.  And  I  think  the  defendant 
always  has  an  election  to  recoup  his  damages  or  wait  and 
bring  his  suit.  It  may  well  be  that  his  damages  exceed  the 
plaintiff's  demand,  and,  as  he  cannot  split  up  his  claim,  and 
use  part  of  it  to  extinguish  the  plaintiff's  demand,  and  bring 
suit  for  the  residue,  he  ought  not  to  be  bound  to  recoup  his 
damages  in  any  case.  Nor  do  I  think  the  authorities  re- 
quire it  of  him.  Real  v.  McAlister,  8  Wend.  109  ;  14  lb. 
257 ;  5  Hill,  76.  But  when  there  is  no  claim  on  the  part  of 
the  plaintiff  there  cannot,  strictly  and  logically  speaking,  be 
a  counter  claim.  The  claim  of  Bellinger  against  the  defend- 
ant in  this  case  does  not  admit  the  defendant's  claim,  but 
denies  its  existence  altogether.  The  two  claims  cannot  co- 
exist. If  Bellinger's  claim  is  good,  and  if  judgment  had 
passed  in  his  favor  before  the  suit  in  the  justice's  court  was 
disposed  of,  it  would  have  estopped  the  defendant  from  say- 
ing that  he  had  performed  his  contract,  and  would  have 
barred  his  action  before  the  justice.     This  point  was  decided 


FKACTURES  NEAR  ANKLE-JOINT.         201 

in  the  case  of  Edwards  v.  Stewart^  in  this  court.  As  estop- 
pels are  mutual,  the  converse  of  this  proposition  must  be 
held  in  this  case.  And  I  think  the  point  is  thus  held  in 
Davis  V.  Tallcot,  in  the  Court  of  Appeals.  See  Judge  Gae- 
dinek's  opinion,  2  Kernan,  189. 

The  result  is  that  the  judgment  must  be  reversed,  and  a 
new  trial  granted,  costs  to  abide  the  result. 

Allen,  J.,  concurred ;  Mullin,  J.,  dissented. 

Judgment  reversed. ^^ 


Gallahee  v.  Thompson.1 

"  Wright,  J.  The  second  and  third  counts  of  the  dec- 
laration are  upon  an  express  undertaking  to  cure.  There  is 
no  evidence  of  such  an  undertaking,  and  the  law  does  not 
imply  one  to  that  extent,  from  the  mere  employment  of  a 
surgeon  to  attend  a  patient. 

When  the  act  to  be  done  depends  upon  the  skill  of  the 
operator  alone,  the  law  will  imply  an  engagement  to  use  that 
skill,  and  to  produce  the  desired  result,  from  the  employment 
of  one  professing  it,  and  holding  himself  out  to  the  world  as 
having  it.  Where  the  result  desired,  as  the  cure  in  the  case 
before  us,  depends  both  upon  skill  in  the  use"  of  means,  and 
the  influence  of  other  causes,  the  law  raises  no  such  implied 
engagement ;  it  regards  the  undertaking  to  be  only  for  the 
use  of  proper  means.  The  retainer  of  a  lawyer  obliges  him 
to  the  right  conduct  of  the  suit,  but  not  for  the  judgment  of 
the  court,  for  that  is  beyond  his  control.  The  retainer  of  a 
phj^sician  obliges  him  to  the  employment  of  ordinary  med- 
ical skill  in  the  treatment  of  the  patient ;  the  cure  is  not 
with  him,  but  is  dependent  upon  the  constitution  of  the  pa- 
tient, and  the  influence  of  causes  beyond  the  control  of  the 
physician. 

The  husbandman  employed  to  cultivate  a  field  is  not  sup- 
posed to  engage  for  the  production  of  an  average  crop.     He 

1  Wright   (Ohio),  466. 


202  CIVIL  MALPRACTICE. 

may  plough  and  sow,  plant  and  water,  but  the  increase  is 
not  from  him.  A  smith,  engaging  to  shoe  a  horse,  im- 
pliedly engages  skill  to  put  the  shoe  in  the  proper  place, 
and  to  avoid  the  quick  in  his  fastening,  because  that  is  a 
mere  physical  operation,  and  the  end  sought  for  depends 
upon  nothing  but  skill.  The  surgeon,  called  to  a  patient 
with  a  broken  or  dislocated  limb,  and  operating,  impliedly 
engages  the  ordinary  skill  of  the  profession  in  adjusting  the 
fractured  bone,  or  reducing  the  dislocation,  and  the  subse- 
quent treatment  of  the  patient  while  he  attends  ;  these  de- 
pend on  himself.  He  is  not  supposed  to  engage  to  cure  or 
to  insure  a  recovery,  because  a  cure  depends  not  upon  him. 
This  point  has  been  several  times  before  the  court,  and  has 
been  always  so  decided.  As  to  the  second  and  third  counts, 
therefore,  there  is  at  present  a  want  of  evidence  to  sustain 
them. 

The  first  count  is  upon  an  undertaking  with  both  the 
plaintiffs  ;  the  proof  is  of  an  engagement  hj  the  husband  ; 
this  it  is  urged,  is  proof  of  a  contract  different  from  the  one 
declared  on. 

Where  the  injury  is  to  the  absolute  rights  of  the  person,  — 
as  batteries,  injuries  to  health,  reputation,  liberty,  —  and  are 
inflicted  upon  a  married  woman,  and  the  suit  seeks  compen- 
sation for  the  injury  to  her,  or  for  her  personal  suffering, 
the  husband  must  be  joined  in  the  suit ;  for,  in  case  of  his 
death  the  cause  of  action  survives  to  her,  and  she  may  pros- 
ecute the  suit  to  judgment  and  execution.  1  Ch.  PL  46, 
61 ;  2  Kent.  Com.  151. 

The  difficulty  suggested  is  not  perceived,  but  it  is  one 
open  on  the  record,  and  may  be  raised  hereafter,  if  further 
examination  is  desired. 

It  is  further  objected,  that  the  retainer  of  the  surgeon 
does  not,  in  law,  suppose  an  undertaking  to  reduce  or  set  the 
bone  skilfully,  but  that  such  undertaking  must  be  expressly 
proved.  The  setting  or  putting  in  place  the  bones  is  a 
mere  physical  operation ;  and  we  think  the  retainer  and  the 
visits  and  acts  of  the  surgeon  do  lay  a  foundation  in  law  to 


FKACTURES   NEAE  ANKLE-JOINT.  203 

suppose  an  undertaking  to  reduce  the  leg,  and  treat  the  pa- 
tient skilfully.  There  is  evidence,  on  the  subject  of  the 
treatment,  which  is  for  the  jury.  The  question,  whether  the 
skilful  setting,  and  judicious  treatment,  should  at  all  events 
effect  a  perfect  cure,  is  a  distinct  one,  not  necessary  now  to 
decide.     The  motion  is  overruled. 

Evidence  was  then  offered  on  both  sides,  as  to  the  manner 
of  treating  and  dressing  the  limb,  and  of  surgeons  as  to  what 
was  the  usual  and  customary  mode  in  the  profession,  &c. 
When  the  evidence  was  closed,  Culbersfon^  for  the  plaintiff, 
admitted  that  he  could  only  recover  on  the  first  count,  for 
the  unskilful  setting  of  the  bone,  and  submitted  without  ar- 
gument to  the  jury. 

Wright,  J.  The  question  turns  solely  on  the  credit  due 
to  the  physicians  who  have  testified  as  to  the  practice. 

If  they  are  skilful  themselves  and  worthy  of  credit,  your 
verdict  should  be  for  the  defendant,  for  they  all  sustain  the 
practice  ;  if  unworthy  of  credit,  or  unskilful,  and  the  other 
proof  shows  the  practice  careless  and  unskilful,  you  should 
give  the  plaintiff  such  damages  as  will  compensate  for  the 
injury  the  wife  has  received. 

Vei'dict  and' judgment  for  the  defendant^ 

Leighton  v.  Saegbant.^ 

(Second  Trial  in  Lower  Court.) 

"  Histoey  and  abstract  of  evidence.  The  plaintiff,  while 
riding  in  an  open  wagon  in  the  town  of  Strafford,  was 
violently  thrown  out  of  his  carriage,  to  some  distance,  and 
was  severely  injured.  The  right  ankle-joint  was  dislocated, 
and  a  comminution  of  the  tibia,  with  a  fracture  of  the  fibula, 
occurred.  The  injury  is  termed  a  compound  dislocation 
of  the  ankle-joint,  alwa3^s  a  very  grave  injury,  involving 
oftentimes  the  life  of  the  injured  person.  This  took  place 
on  the  1st  of  September,  1850.  As  there  was  no  physician 
then  in  Strafford,  Drs.  Grover  and  Sargeant,  of  Barnstead, 
1  Boston  Medical  and  Surgical  Journal,  vol.  li.  p.  289. 


204  CIVIL  MALPRACTICE. 

were  applied  to.  They  came,  dressed  the  aiikle-jomt,  and 
both  had  supervision  of  the  patient,  for  some  three  or  four 
weeks.  After  this,  the  care  of  the  patient  devolved  upon 
Dr.  Sargeant,  for  the  space  of  one  hundred  and  thirty-two 
days,  in  which  time  Dr.  Sargeant  made  sixty-two  visits,  liv- 
ing at  a  distance  of  some  sis  miles.  There  can  be  no  doubt 
that  the  injury  was  estremly  severe,  as  all  such  injuries  are. 
There  was,  of  course,  great  constitutional  derangement,  and 
a  large  tax  upon  the  vital  system,  requiring  all  the  power  of 
nature  to  bear  it  up  against  the  almost  fatal  consequences 
arising  from  compound  dislocations  of  this  character.  Such, 
indeed,  was  the  fact,  as  appears  from  the  evidence  in  the 
case.  The  patient  had  feverish  excitement,  attended  with 
cough,  and  had  to  resort  to  stimulation,  to  withstand  the 
prostrating  effects  of  disease. 

The  ankle-joint  was  a  long  time  in  healing.  For  more 
than  two  years,  at  times,  some  portions  of  the  joint  would 
inflame  and  suppurate,  and  spiculas  of  bone  issue  from  these 
ulcerations.  Within  a  year  the  ankle  has  become  healed,  but 
stiff.  The  heel  of  the  foot  is  raised  some  three  inches,  and 
the  toes  consequently  drop,  so  that  the  plaintiff  can  walk 
with  the  aid  of  a  cane.  There  has  been  a  visible  improve- 
ment in  the  external  appearance  of  the  the  foot.  Absorp- 
tion has  taken  place,  muscular  action  improved,  and  more 
motion  in  the  joint  observed. 

About  the  time  this  suit  was  commenced,  Dr.  Grover,  the 
other  surgeon  in  the  case,  died,  leaving  Dr.  Sargeant  alone 
to  fight  the  prejudices  of  the  community,  and  to  bear  the 
whole  expense  of  a  strongly-contested  and  protracted  trial. 

Dr.  Sargeant,  in  the  treatment  of  this  dislocation,  used 
three  boxes,  made  with  foot-pieces,  capable  of  elevation. 
These  foot-pieces  were  made  of  different  angles,  varying 
from  two  to  three  and  a  half  inches.  The  boxes  were  of 
home  manufacture,  and  answered  very  well  the  purpose  for 
which  they  were  designed. 

No  attempt  was  made  to  prove  Dr.  Sargeant  negligent  or 
inattentive  to  his  patient.     On  the  contrary,  it  was  acknowl- 


FRACTURES  NEAR  ANKLE-JOINT.  205 

edged  that  he  was  assiduous  in  his  visits  and  prompt  to  mit- 
igate the  pain  and  distress  with  which  the  plaintiff  was  often 
troubled.  The  plea  set  up  by  the  prosecution  was  that  the 
foot  should  have  been  kept  at  right  angles  with  the  leg,  but 
that,  instead  of  this,  the  defendant  had  let  the  toes  drop 
from  three  to  five  inches,  and  the  foot  had  become  fixed 
and  in  an  immovable  position,  and  could  never  be  remedied, 
except  by  amputation.  It  was  also  maintained,  that  there 
was  complete  anchylosis,  and  that  the  defendant  had  showed 
great  carelessness  and  want  of  skill  in  putting  a  starch 
bandage  upon  the  limb,  thereby  causing  irritation  to  the 
skin,  and  a  disagreeable  fetor.  The  starch  bandage  was  not, 
however,  considered  a  very  great  misdemeanor  on  the  part 
of  the  defendant,  although  it  formed  a  large  space  in  the 
writ.  The  great  object  was  to  make  an  impression  upon  the 
jury,  and  perchance  a  successful  one. 

The  plaintiff  adduced  witnesses  to  show  that  the  position 
of  the  foot  was  the  same  as  when  first  placed  in  the  fract- 
ure-box ;  that  it  had  been  measured  in  their  presence  after 
the  defendant  had  given  up  his  attendance  of  the  ankle-joint, 
and  the  heel  appeared  as  high  now,  and  the  toes  as  much 
dropped  ;  that  the  surgeon's  -attention  was  called  to  the  posi- 
tion of  the  foot  several  times,  while  the  patient  was  under 
his  care,  and  he  always  remarked,  with  but  one  exception, 
that  '  the  position  of  the  foot  was  right ;  that  the  toes  should 
be  dropped  a  little  to  get  the  spring  of  the  foot.' 

Two  physicians  were  called  by  plaintiff,  Drs.  Perry  of 
Exeter  and  Hill  of  Dover.  Dr.  Perry  states  that  he  be- 
lieves he  has  had  all  kinds  of  dislocations  of  the  ankle-joint, 
and  that  he  has  been  successful  in  the  treatment  of  all  of 
them ;  that  the  natural  position  of  the  foot  at  rest  is  at  a 
right  angle  with  the  leg  ;  that  passive  motion  should  be 
made  in  dislocations  of  the  ankle-joint  as  earl}^  as  the  third 
week,  to  prevent  the  joint  becoming  stiff  ;  that  there  was  no 
difficulty  in  fixing  the  foot  in  any  position  desired  and  main- 
taining it  there ;  it  could  have  been  fastened  to  the  foot- 
pieces  of  one  of  the  boxes  ;  that  there  was  anchylosis  of  the 


206  CrVTL  MALPEACTICE. 

joint,  but  lie  could  not  tell  whether  bony  or  ligamentous  an- 
chylosis ;  that  the  injury  was  a  very  seyere  one,  and  the 
breaking  into  the  joint,  makes  the  'bad'  about  it.  He 
knew  of  no  reason  why  the  foot  could  not  be  kept  at  right 
angles,  and  he  never  saw  an  instance  where  it  could  not  be 
maintained  in  that  position.  Most  of  the  cases  where  the 
fracture  is  in  the  ankle-joint,  are  of  doubtful  cure.  The 
wound  in  this  case  was  healed  up  perfectly  well;  the  only 
trouble  was  in  not  keeping  the  foot  in  the  right  position. 

The  defendant,  in  the  maintenance  of  his  case,  proved 
that  the  right  position  of  the  foot  was  below  a  right  angle, 
and  the  toes  should  drop  about  one  inch,  if  complete  anchy- 
losis should  obtain,  with  free  motion  in  the  knee-joint ;  that 
the  defendant  did  make  efforts  to  elevate  the  foot  to  nearly 
right  angles,  and  when  he  left  the  treatment  of  the  patient, 
the  toes  were  less  pointed  than  at  the  present  time  ;  that 
continued  ulceration  and  suppuration  about  the  joint  would 
tend,  from  the  powerful  action  of  the  gastrocnemii  muscles, 
to  contract  the  heel  and  consequently  point  the  toes. 

About  twenty  witnesses  testified  that  they  saw  a  book 
three  fourths  of  an  inch  thick  frequently  behind  the  foot- 
board, which  would  bring  the  foot  nearly  at  right  angles 
with  the  leg.  The  plaintiff,  however,  endeavored  to  prove 
that,  when  the  book  was  behind  the  foot-board,  it  must  have 
been  as  late  as  November,  1850,  instead  of  September  or 
October,  as  the  defence  alleged. 

The  defendant  at  the  first  trial  (which  was  reviewed  by 
Supreme  Court,  see  decision  7  Foster,  460)  had  Drs.  Samuel 
Parkman  and  H.  J.  Bigelow,  of  Boston,  as  witnesses,  and 
on  the  present  trial  Dr.  Bigelow  alone,  with  some  six  sur- 
geons of  the  locality  in  which  the  trial  was  held. 

Dr.  Bigeloiv  testified  that  compound  dislocations  are  very 
severe  injuries,  so  that  amputation  is  necessary  in  some 
instances ;  in  others,  surgeons  attempt  to  save  the  limb, 
which  often  results  in  death.  The  best  treatment  cannot 
make  a  good  limb.  It  often  becomes  stiff,  and  there  is  great 
difficulty  in  keeping  the  foot  at  right  angles,  when  there  is 


FEACTURES  NEAR  ANKLE-JOINT.  207 

great  pain  and  inflammation.  If  the  knee  is  limber,  the 
proper  position  of  the  foot  in  anchylosis  is  below  a  right 
angle.     The  toes  should  drop  a  little. 

In  cases  such  as  supposed  (namely,  where  there  is  a  com- 
pound dislocation  of  the  ankle-joint,  together  with  commi- 
nution of  the  tibia,  &c.)  a  result,  such  as  the  plaintiff's  foot 
now  shows,  might  most  certainly  occur  under  the  best  sur- 
gical treatment.  I  have  had  cases  under  my  own  care,  where 
the  result  was  as  bad  as  this  ;  from  such  injuries  as  I  suppose 
this  to  have  been,  —  a  compound  fracture  and  dislocation,  or 
even  from  a  simple  dislocation  or  fracture  above  the  ankle- 
joint.  Not  unfrequently  as  bad  a  result  as  this  attends  the 
best  treatment.  I  had  a  case  of  simple  fracture  of  the  leg 
last  winter,  where  there  was  a  great  lateral  distortion,  as 
bad  as  the  plaintiff's.  I  never  had  a  case  where  the  toes 
pointed  exactly  like  these.  I  have  seen  cases  as  bad  or 
worse. 

I  think  there  is  a  little  motion  in  the  ankle-joint  of  the 
plaintiff.  There  is  stift'ness  there,  but  it  does  not  indicate 
bony  anchylosis:  I  have  doubts  about  there  being  anchylosis 
there.  The  foot,  unrestrained,  while  inflammation  and  ul- 
ceration were  at  work  around  the  joint,  would  be  likely  to 
get  worse.  The  weight  of  the  foot  and  the  large  muscles  of 
the  leg  would  draw  up  the  heel. 

I  have  had  two  cases  like  the  plaintiff's  during  the  last 
winter,  in  the  Massachusetts  Hospital.  In  the  first  one  the 
tibia  was  broken,  the  malleolus  fractured  into  the  joint,  and 
the  integuments  ruptured,  so  as  to  make  it  a  compound  dis- 
location. In  this  case  the  ankle  was  pretty  stiff  when  the 
patient  left  the  hospital.  The  other  was  an  Irishwoman. 
The  internal  malleolus  was  broken  off.  I  cannot  tell  about 
the  result  of  the  case,  whether  stiff  or  not.  In  each  of  these 
cases  the  foot  was  put  into  the  position  I  always  attempt  to 
get,  viz.  :  as  near  a  right  angle  as  possible,  if  the  pain  and 
inflammation  will  permit. 

The  proper  treatment  of  a  compound  dislocation  of  the 
ankle-joint  is,  to  examine  the  foot  with  reference  to  the  in- 


208  CIVIL  MALPEACTICE. 

jury;  to  see  if  any  pieces  of  bone  are  loose,  and  try  and  ex- 
tricate them  ;  then  place  the  foot  in  a  proper  position,  and 
put  it  into  a  box  or  splint.  Keep  it  so  until  pain  or  suppu- 
ration occur,  then  change  it  as  circumstances  require.  Worry 
along  with  it.  Do  the  best  you  can.  Keep  it  still,  if  pos- 
sible, provided  it  is  right  as  to  position.  One  tendency  of 
the  foot  is  to  fall  down.  Keep  it  up,  if  you  can,  but  some- 
times the  pain  will  be  so  great  that  you  will  have  to  let  it 
down.  After  all  one  can  do,  the  surgeon  is  glad  to  get  off 
with  any  foot  that  will  do  to  walk  on.  If  you  put  the  foot 
in  the  best  position  to-day,  to-morrow  it  will  get  out  of  its 
proper  position.  You  cannot  fasten  the  foot  so  that  the  pa- 
tient will  not  draw  the  heel  back  from  the  foot-board,  to 
ease  the  pain.  If  you  place  ten  limbs  in  a  common  fracture- 
box,  by  the  third  day  not  one  of  them  would  be  in  place, 
because  the  bandages  will  slip  and  stretch. 

I  could  not  denominate  it  improper  treatment  to  fasten 
a  foot  to  the  foot-board  of  the  first  box  (when  it  falls  some 
three  inches  from  a  right  angle),  because  the  position  is  so 
comparatively  a  small  and  minor  point.  The  stiff  joint  is 
something  of  three  months  hence.  I  should  put  the  foot 
up ;  but,  if  the  inflammation  were  great,  I  should  expect  it 
to  get  put  of  its  position  in  spite  of  me.  It  would  not  be 
proper  treatment  to  place  the  foot  at  the  angle  of  the  first 
box  for  eight  or  ten  weeks  without  making  an  attempt  to 
elevate  it.  The  position  is  a  small  matter  in  any  case  of 
compound  dislocation  of  the  ankle-joint,  because  the  great 
question  is  to  save  the  foot  at  all,  —  to  get  such  a  joint  as 
can  bear  the  weight  of  a  person  in  walking  —  to  make  the 
ankle  sound. 

The  efforts  to  save  the  joint  are  mostly  those  of  nature. 
A  surgeon  may  do  much  injury  by  interference.  It  is  per- 
fectly uncertain  at  what  time  passive  motion  may  be  used, 
—  not  until  the  wound  is  healed  up  and  the  parts  are  all 
sound.  Joints  are  almost  all  in  a  state  of  anchylosis  when 
they  come  out  of  the  fracture-box,  and  all  passive  motion 
before  would  be  injurious  ;    especially  when   inflammation 


FRACTURES  NEAR  ANKLE-JOINT.  209 

exists.  Perhaps  six  months  would  be  required  in  some 
instances  before  motion  should  be  resorted  to. 

If  a  cough  afflicts  the  patient,  and  there  is  constitutional 
irritability  and  pain,  it  would  be  impossible  to  elevate  the 
foot.     It  cannot  be  done. 

The  testimony  of  the  other  surgeons  coincided  with  that 
of  Dr.  Bigelow. 

The  following  instructions  were  given  the  jury  by  the 
court,  MiNOT,  J. :  — 

1st.  The  medical  man  engages  that  he  possesses  a  reason- 
able degree  of  skill,  such  as  is  ordinarily  possessed  by  his 
profession  generally. 

2d.  He  engages  to  exercise  that  skill  with  reasonable  care 
and  diligence. 

3d.  He  engages  to  exercise  his  best  judgment,  but  is  not 
responsible  for  a  mistake  of  judgment.  Beyond  this,  the 
defendant  is  not  responsible.  The  patient  must  be  respon- 
sible for  all  else.  If  he  desires  the  highest  degree  of  skill 
and  care  he  must  secure  it  himself. 

4th.  It  is  a  rule  in  law  that  a  medical  practitioner  never 
insures  the  result." 

In  the  first  suit  the  jury  found  damages  for  plaintiff  in  the 
sum  of  $1,500  and  costs,  a  review  of  which  by  the  Supreme 
Court  is  appended.  In  the  present  trial  damages  were  found 
for  the  plaintiff  in  f  525  and  costs.  The  case  was  again  taken 
to  the  Supreme  Court  under  exceptions,  in  some  respects 
entirely  new. 

The  following  letter  from  Dr.  Valentine  Mott  to  the  re- 
porter of  the  case.  Dr.  Pray  of  Dover,  N.  H.,  will  be  of  much 
interest  in  connection  with  the  case :  — 

New  York,  September  21,  1854. 

Dr.  Pray  :  Dear  Sir,  —  All  compound  dislocations  of  the 
ankle-joint  are  very  formidable  accidents.  I  have  seen  and 
treated  many  of  them. 

I  have  amputated  immediately  and  consecutively ;  had 
lock-jaw  to  supervene  upon  the  attempt  to  save  the  limb, 

14 


210  CIVIL  MALPRACTICE. 

and  prove  fatal  even  when  amputation  was  practised ;  seen 
the  astragalus  removed  in  three  instances  at  the  time  of  the 
injury,  and  once  by  necrosis  ;  and  all  the  patients  did  well 
with  very  fair  use  of  the  joint  and  foot. 

It  is  very  difficult  in  some  cases  to  keep  the  foot  at  right 
angles  with  the  leg,  owing  to  the  restlessness  of  the  patient, 
and  the  powerful  action  of  the.  gastrocnemii  muscles. 

I  may  have  the  heel  raised  one  or  two  inches  after  the 
patient  gets  about,  and  another  may  have  a  case  with  three 
inches. 

No  surgeon  ought  to  be  prosecuted  and  fined  for  such  a 
result.  The  patient  ought  to  be  thankful  that  it  is  so 
favorable,  and  pay  his  surgeon  for  services,  as  the  defect 
can  readily  be  remedied  by  a  high  heel  or  some  mechanical 
contrivance. 

No  absolute  rule  can  be  laid  down  for  the  treatment  of 
these  injuries.  Circumstances  must  govern  the  judgment  of 
the  surgeon  in  each  case. 

Very  respectfully, 

V.    MOTT. 

The  case  cited  supra  was  again  reviewed  by  the  Supreme 
Court.  See  decision  appended.  The  case  was  never  tried 
again,"  some  compromise  being  reached  by  the  parties  to  the 
suit.i 

Leighton"  v.  Sakgeant.2 

(S.  C.  review  and  decision  in  First  Trial.) 

"  Bell,  J.  The  first  question  raised  by  this  case  relates  to 
the  admissibility  of  the  evidence  offered  by  the  defendant, 
that  he  had  received  a  good  medical  and  surgical  education, 
and  was  a  regularly  educated  and  skilful  sui-geon  and  phy- 
sician. At  the  first  look  it  would  not  seem  that  the  decision 
of  this  question  could  involve  the  discussion  of  the  princi- 
ples upon  wdiich  the  action  is  maintained.  But  as  our  con- 
1  Dr.  Pray  :  Private  Correspondence.  ^  7  Foster  (N.  H.),  460. 


FEACTDRES  NEAR  ANKLE-JOINT.  211 

elusion  upon  this  incidental  question  rests  upon  those  princi- 
ples, we  propose  to  state  them  at  such  length  as  clearly  to 
show  the  points  upon  which  we  rest  our  decision.  These 
principles  are  of  great  consequence  to  all  classes  of  pro- 
fessional men,  who  are  employed  by  others  to  transact  busi- 
ness requiring  especial  skill  and  knowledge.  The  duties  and 
responsibilities  of  all  these  classes,  as  those  of  lawyers  and 
physicians,  machinists,  shipmasters,  builders,  brokers,  &c., 
are  governed  by  the  same  general  rules.  1  Bouv.  Inst.  403. 
These  rules  it  is  important  should  be  settled  and  well  under- 
stood, since  there  are  times  when  the  verdicts  of  juries  tend 
to  release  professional  men  from  even  a  reasonable  responsi- 
bility, as  there  are  others  when  they  seem  to  hold  every  one 
who  offers  his  services  in  any  of  the  professions  to  an  over- 
rigid  accountability,  and  to  make  him  little  less  than  a  war-- 
rantor  or  insurer  of  the  success  of  every  business  in  which: 
he  engages.  At  the  present  moment,  it  is  to  be  feared,  there 
is  a  tendency  to  impose  some  perilous  obligations,  beyond  the 
requirements  of  the  law,  upon  some  classes  of  professional' 
men. 

What,  then,  is  the  contract  of  the  professional  man  with, 
his  employer,  in  regard  to  his  qualifications  and  his  conduct  ?■ 
Or,  since  this  contract  is  one  implied  by  the  law,  what  are 
the  duties  and  obligations  of  the  professional  man,  recognized' 
by  the  law  in  these  respects  ?  And  here  it  may  be  laid, 
down  broadly  that,  without  a  special  contract  for  that  pur-, 
pose,  he  is  never  a  warrantor  nor  insurer.  Hanche  v.  Hooper^, 
7  C  &  P.  81.  He  never  stipulates  for  success  at  all  events, 
and  he  is  never  to  be  tried  by  the  event.  By  a  special  con- 
tract for  that  purpose  he  may  bind  himself  not  merely  to  the 
exercise  of  skill,  care,  and  diligence,  but  to  be  responsible- 
for  results.  He  may  undertake  to  do  certain  things,  as,  for 
example,  a  builder  may  agree  to  build  a  house  or  a  ship  of  a 
certain  description,  and  he  then  cannot  excuse  himself  on  the 
ground  of  his  want  of  sufficient  skill.  In  that  case,  the 
maxim  of  the  civil  law  applies,  spondet  peritiam  artis.  So 
a  surgeon  may  contract  for  a  removal  of  a  limb,  the  physi- 


212  CIVIL  MALPRACTICE. 

cian  for  a  cure  of  a  disease,  or  tlie  lawyer  for  the  foreclos- 
ure of  a  mortgage,  and  by  such  a  contract  he  becomes  a 
guarantor  of  the  result.  He  must  be  understood  to  have 
engaged  to  use  a  degree  of  diligence,  and  attention,  and 
skill  adequate  to  the  performance  of  his  undertaking.  It  is 
his  own  fault  if  he  undertakes  without  sufficient  skill,  or 
applies  less  than  the  occasion  requires.  In  that  case  imperitia 
culpce  adnumeratur.  It  is  in  these  cases  alone,  either  of  ex- 
press contract  to  do  certain  work,  or  to  accomplish  certain 
results,  or  where  such  contract  is  necessarily  implied,  that 
the  rule  of  the  civil  law,  quoted  as  above  by  the  elementary 
writers,  has  any  application  here.  Story  on  Bail.  379 ; 
Chitty  on  Con.  165  ;  3  Black.  Com.  122 ;  2  Greenl.  Ev.  144 ; 
1  Bouv.  Inst.  403. 

By  our  law,  a  person  who  offers  his  services  to  the  com- 
munity generally,  or  to  any  individual,  for  employment  in 
any  professional  capacity  as  a  person  of  skill,  contracts  with 
his  employer  :  1.  That  he  possesses  that  reasonable  degree 
of  learning,  skill,  and  experience,  which  is  ordinarily  pos- 
sessed by  the  professors  of  the  same  art  or  science,  and  which 
is  ordinarily  regarded  by  the  community,  and  by  those  con- 
versant with  that  employment,  as  necessary  and  sufficient  to 
qualify  him  to  engage  in  such  business.  In  the  language  of 
Story,  J.,  Bailments,  433,  '  In  all  these  cases,  where  skill  is 
required,  it  is  to  be  understood  that  it  means  ordinary  skill 
in  the  business  or  employment  which  the  bailee  undertakes 
for."  For  he  is  not  presumed  to  engage  for  extraordinary 
skill,  which  belongs  to  few  men  only,  in  his  business  or  em- 
ployment, or  for  extraordinary^  endowments  or  acquirements. 
Reasonable  skill  constitutes  the  measure  of  the  engagements, 
in  regard  to  the  thing  undertaken.'  Or,  as  it  is  said  by  Tin- 
dal,  C.  J.  (Lanphier  v.  Fhipos,  8  C.  &  P.  475),  '  Every 
person  who  enters  into  a  learned  profession  undertakes  to 
bring  to  the  exercise  of  it  a  reasonable  degree  of  care  and 
skill.  He  does  not  undertake,  if  he  is  an  attorney,  that  you 
will,  at  all  events,  gain  your  cause ;  nor  does  a  surgeon  un- 
dertake that  he  will  perform  a  cure  ;  nor  does  he  undertake 


FRACTURES  NEAR  ANKLE-JOINT.  213 

to  use  the  highest  possible  degree  of  skill.  There  may  be 
persons  who  have  higher  education  and  greater  advantages 
than  he  has,  but  he  undertakes  to  bring  a  reasonable,  fair, 
and  competent  degree  of  skill.'  This  principle  of  the  com- 
mon law,  as  to  the  engagement  of  the  professional  man,  for 
a  reasonable  decree  of  skill  and  no  more,  has  been  settled  in 
the  case  of  attorneys,  in  Pitt  v.  Yalden,  4  Burr.  2060; 
Laidler  v.  Mliott,  3  B.  &  C.  738;  S.  O.  5  D.  &  R.  635; 
Russell  V.  Palmer,  2  Wils.  325  ;  Hunter  v.  Caldwell,  16  L. 
Jour.  Q.  B.  274;  S.  C.  11  Jur.  770,  and  10  Q.  B.  69; 
Purves  V.  Landell,  12  C.  &  Fin.  91  ;  Varnum  v.  Martin,  15 
Pick.  440  ;  Stimpson  v.  Sprague,  6  Greenl.  470  ;  Crooker  v. 
Hutchinson,  1  Vt.  Rep.  73  ;  Holmes  v.  Peck,  1  R.  I.  Rep. 
242 ;  Wilson  v.  Russ,  2  Appleton  (20  Maine),  421 ;  1  Leigh's 
N.  P.  196  ;  2  Greenl.  Ev.  12th  ed.  124  ;  1  Saund.  P.  &  E. 
163  ;  Chitty  on  Con.  165. 

In  the  case  of  physicians  and  surgeons,  in  Scare  v.  Pren- 
tice, 8  East,  348 ;  Slater  v.  Baker,  2  Wils.  359 ;  Moore  v. 
Mourgue,  2  Cowp.  479  ;  Hancke  v.  Hooper,  7  C.  &  P.  81 ; 
Lanpliier  v.  PTiipos,  8  C.  &  P.  475;   G-rannis  y.  Branden, 

5  Day,  260 ;  Landon  v.  Humphrey,  9  Conn.  Rep.  209 ; 
Howard  v.  Grover,  14  Shep.  97 ;  Gallaher  v.  Thompson, 
Wright,  466  ;  Mertz  v.  Detweiler,  8  W.  &  S.  376  ;  1  Saund. 
P.  &  E.  91 ;  1  Wms.  Saund.  312,  note  2 ;  1  Bouv.  Inst.  403 ; 
Bell's  Com.  459  ;  and  as  to  other  employments,  in  Pawtnary 
V.  Walton,  1  Rolle's  Ab.  92;  Bull.  N.  P.  73;  Story  on  Bail. 
280,  §  429  ;  Paley  on  Agency,  78  ;  Philips  v.  Wood,  1  N. 

6  M.  434. 

II.  In  the  second  place,  the  professional  man  contracts 
that  he  will  use  reasonable  and  ordinary  care  and  diligence 
in  the  exertion  of  his  skill,  and  the  application  of  his  knowl- 
edge, to  accomplish  the  purpose  for  which  he  is  employed. 
He  does  not  undertake  for  extraordinary  care  or  extraordi- 
nary diligence,  any  more  than  he  does  for  uncommon  skill. 
The  general  rule  is  well  settled,  as  in  other  cases  of  con- 
tracts, supposed  to  be  mutually  beneficial  to  the  parties,  that 
the  contractor,  for   services    to  be   performed   for  another, 


214  CIVIL   IVIALPRACTICE. 

agrees  to  exert  such  care  and  diligence  in  his  employment  as 
men  of  common  care  and  common  prudence  usually  exert  in 
their  own  business  of  a  similar  kind.  He  agrees  to  be  re- 
sponsible for  the  want  of  such  care  and  attention,  and  he 
stipulates  in  no  event,  without  an  express  contract  for  that 
purpose,  for  any  greater  liability.  See  the  cases  before 
cited,  and  Kilshy  v.  Williams,  5  B.  &  A.  820 ;  Pater  son  v. 
Gandasequi,  15  East,  62 ;  Howard  v.  Grover,  14  Shep.  97. 
Many  decisions  deny  the  liability  of  professional  men  even 
to  this  extent,  since  they  decide  that  the  surgeon  or  the  at- 
torney shall  not  be  held  responsible  except  for  lata  culpa  or 
crassa  negligentia,  manifest  fault  or  gross  negligence.  Gode- 
froy  V.  Dalton,  6  Bing.  461  \  S.  C.  ^  M.  &  P.  149 ;  Purves 
V.  Landell,  12  C.  &  F.  91 ;  WUson  v.  Pvuss,  2  Appleton  (20 
Maine),  421 ;  1  Leigh's  N.  P.  196. 

Perhaps  nothing  more  is  designed  to  be  expressed  in  these 
cases  than  that  the  defendant  is  only  liable  for  the  want  of 
ordinary  care.  Upon  this  point  it  might  be  made  a  question, 
whether  a  medical  man  is  not  bound  to  apply  extraordinary 
care,  because  his^charge  relates  to  the  lives  and  health  of  his 
patients,  which  are  to  them  of  unequalled  importance  and 
interest.  But  there  is  no  pretence  that  the  physican  is  bound 
by  any  other  rule  in  this  respect,  than  that  which  governs  all 
classes  of  men  employed  in  works  or  services  requiring  skill, 
— the  rule  of  ordinary  care  and  diligence.  There  is,  of  course, 
a  difference  in  different  cases,  as  to  what  constitutes  ordinary 
care,  dependent  upon  the  importance  and  delicacy  or  diffi- 
culty of  the  thing  to  be  done.  '  Different  things,'  says 
Story  (Bailments,  §  429),  borrowing  a  very  ancient  illustra- 
tion, '  may  require  very  different  care.  The  care  required 
in  building  a  common  doorway  is  quite  different  from  that 
required  in  raising  a  common  pillar;  but  both  come  under 
the  description  of  ordinary  care.'  Such  differences  must 
exist  among  the  cases  requiring  medical  attention.  But  the 
common  rule  still  applies,  which  requires  such  care  and 
diligence  as  men  in  general,  of  common  prudence  and  ordi- 
nary attention,  usually  apply  in  similar  cases,  and  not  that 


FRACTURES  NEAR  ANEXE-JOINT.  215 

extraordinary  care  whicli  might  be  applied  in  such  a  case  by 
very  careful  and  prudent  persons. 

III.  In  stipulating  to  exert  his  skill,  and  apply  his  dili- 
gence and  care,  the  medical  and  other  professional  men  con- 
tract to  use  their  best  judgment.  Few  cases  can  be  sup- 
posed Avhere  but  a  single  course  of  measures  alone  can  be 
adopted,  and  many  must  occur,  where  great  differences  of 
opinion  may  exist  as  to  the  best  course  to  be  taken.  In 
most  cases  judgment  and  discretion  are  required  to  be  exer- 
cised. Freedom  from  errors  of  judgment  is  never  contracted 
for  by  the  attorney  or  physician. 

Ordinary  good  judgment  is  necessarily  implied  in  the  pos- 
session of  ordinary  skill,  and  if  such  share  of  judgment  is 
fairly  exercised,  any  risk  from  mere  errors  and  mistakes  is 
upon  the  employer  alone.  He,  too,  has  judgment  to  exer- 
cise in  the  selection  of  the  physician  or  the  lawyer  whom  he 
will  employ  ;  and  if  he  makes  a  bad  selection,  if  he  fails  to 
choose  a  man  of  the  best  judgment,  the  result  is  fairly  to  be 
attributed  to  his  own  mistake,  and  is  not  to  be  visited  upon 
the  man  who  has  honestly  done  his  best  endeavor  in  his 
service. 

It  is  in  accordance  with  these  views  that  it  has  been  often 
decided,  that  a  professional  man  is  not  responsible  for  errors 
of  judgment,  for  mere  mistakes,  in  cases  of  reasonable  doubt 
and  uncertainty.  Kemp  v.  Burt,  1  N.  &  M.  262  ;  S.  C.  4 
B.  &  A.  424 ;  Shilcock  v.  Passman,  7  C.  &  P.  289 ;  Laidler 
V.  Elliott,  3  B.  &  C.  738;  aS'.  C.  5  D.  &  R.  635 ;  3Iontriou  v. 
Jefferys,  2  C.  &  P.  113 ;  S.  C.  R.  &  M.  317  ;  Qodefroy  v. 
Bolton,  6  Bing.  461 ;  »S'.  (7.  4  M.  &  P.  149 ;  BaiUe  v.  Chand- 
less,  3  Campb.  17 ;  Pitt  v.  Yalden,  4  Burr.  2060  ;  Reece  v. 
Righy,  4  B.  &  A.  202 ;  1  Saund.  P.  &  E.  63  ;  Chit.  Con. 
165. 

They  should  be  charged  with  the  consequences  of  mere 
errors,  only  where  such  errors  could  not  have  arisen  except 
from  want  of  reasonable  skill  or  diligence.  Hart  v.  Frame^ 
8  Jur.  547  ;  S.  C.  Macl.  R.  595  ;  6  C.  &  F.  193. 

The  cases  cited  relate  principally  to  attorneys,  but,  as  has 


216  CIVIL  MALPEACTICE. 

been  remarked,  tlie  principles  of  the   law  on  this  subject 
apply  equally"  to  all  classes  of  professional  men.    And  the  ob- 
servations of  Lord  Mansfield,  in  Pitt  v.  Yalden,  4  Burr. 
2060,  apply  with  equal  force  to  the  case  of  medical  men : 
'  Attorneys,  who  conduct  themselves  with  honor  and  integ- 
rity, ought  to  be  protected,  when  they  act  to  the  best  of  their 
skill  and  knowledge.     Every  man  is  liable  to   error,  and  I 
should  be  very  sorry  that  it  should  be  taken  for  granted  that 
an  attorney  is  answerable  for  every  error  or  mistake,  and  to 
be  punished  for  it  by  being  charged  with  the  debt  which  he 
was  employed  to  recover.     A  counsel  may  mistake  as  well  as 
an  attorney,  yet  no   one  would  say  that  a  counsel  who  had 
been  mistaken  shall  be  charged  with  the  debt.'     In  Percy 
V.  Millaudon^  20  Martin  R.  75,  Porter,  J.,  remarks:  'It  has 
been  said  that  it  will  not  be  sufficient  for  a  professional  man 
to  say,  he  acted  to  the  best  of  his  ability,  because  he  should 
have  formed  a  more  just  estimate  of  his  own  capacity  before 
he  engaged  himself.     This  doctrine,  if  sound,  would  make 
an    attorney  responsible    for    every   error    of   judgment,  no 
matter  what  care  or  attention  he  exercised  in  forming  his 
opinion.     It  would  make  him  liable   in  all  doubtful  cases 
where  the  wisdom  or  legality  of  one  or  more  alternatives  was 
presented  for  his  consideration,  no  matter  how  difficult  the 
subject  was.     But  when  a  person  who  is  appointed  an  attor- 
ney has  the  qualifications  necessary  for  the  discharge  of  the 
ordinary  duties  of  the  trust  imposed,  we  are  of  the  opinion 
that  on  the  occurrence  of  difficulties  in  the  exercise  of  it, 
which  offer  only  a  choice  of  measures,  the  adoption  of  a 
course  from  which  loss   ensues   cannot  make  the  agent  re- 
sponsible, if  the   error  was  one  into  which  a  prudent  man 
might  have  fallen.     The  contrary  doctrine  seems  to  suppose 
the  possession,  and  require  the  exercise  of  perfect  wisdom 
in  fallible  beings.     No  man  would  undertake  to  render  a 
service  to  another  on  such  severe  conditions.'     The  uncer- 
tainty of  the  law  is  almost  proverbial.     Probably  that  of  the 
medical  profession  is  not  less.     Many  sects  among  them  en- 


FKACTUKES   NEAR  ANKLE-JOINT.  217 

tertain  different,  and  almost  irreconcilable  theories  as  to  the 
nature  and  mode  of  treatment  of  disease. 

Among  all  these  it  seems  to  be  conceded  that  the  charac- 
ters and  symptoms  of  disease  vary  in  persons  of  different 
ages,  sexes,  and  habits  of  life,  and  of  different  natural  or 
acquired  constitution,  and  that  the  treatment  of  diseases,  and 
that  of  wounds  and  fractures,  must  be  more  or  less  varied 
with  the  changes  of  climate,  and  seasons,  and  with  the  pe- 
culiarities of  persons  and  places  ;  and  that  cases  of  sickness 
and  accident  apparently  similar,  may  yet  be  rendered  sub- 
stantially different  by  seemingly  slight  circumstances,  easily 
overlooked,  and  sometimes  difficult  of  detection.  If  this  is 
so,  the  doubts  and  uncertainties  which  surround  the  medical 
and  surgical  practitioner,  and  the  errors  and  mistakes  to 
which  he  is  unavoidably  exposed,  may  well  furnish  a  satis- 
factory explanation  of  unfavorable  results,  when  a  jury  are 
satisfied  of  the  reasonable  skill,  diligence,  attention,  and  care 
exhibited  in  the  treatment. 

To  charge  a  physician  or  surgeon  with  damages,  on  the 
ground  of  unskilful  or  negligent  treatment  of  his  patient's 
case,  it  is  never  enough  to  show  that  he  has  not  treated  his 
patient  in  that  mode,  nor  used  those  measures,  which  in  the 
opinion  of  others,  even  medical  men,  the  case  required;  be- 
cause such  evidence  tends  to  prove  errors  of  judgment,  for 
which  the  defendant  is  not  responsible,  as  much  as  the  want 
of  reasonable  care  and  skill,  for  which  he  may  be  responsible. 
Alone,  it  is  not  evidence  of  the  latter,  and  therefore  the 
party  must  go  further,  and  prove  by  other  evidence  that  the 
defendant  assumed  the  character,  and  undertook  to  act  as  a 
physician,  without  the  education,  knowledge,  and  skill  which 
entitled  him  to  act  in  that  capacity  ;  that  is,  he  must  show 
that  he  had  not  reasonable  and  ordinary  skill,  or  he  is  bound 
to  prove,  in  the  same  way,  that  having  such  knowledge 
and  skill,  he  neglected  to  apply  them  with  such  care  and 
diligence  as  in  his  judgment,  properly  exercised,  the  case 
must  have  appeared  to  require  ;  in  other  words,  that  he  neg- 
lected the  proper  treatment  from  inattention  and  careless- 


218  CIVIL  MALPRACTICE 

ness.  The  evidence  in  support  of  these  two  views  must 
naturally  be  of  a  very  different  nature. 

In  the  present  case,  the  declaration  is  entirely  ambiguous, 
as  to  which  of  the  positions  the  plaintiff's  counsel  would 
adopt  or  choose  to  insist  upon.  The  declaration  alleges  that 
the  injury  occurred  because  the  defendant  so  negligently, 
carelessly,  and  unskilfully  conducted -himself  in  and  about 
the  treatment,  &c.,  that  for  want  of  skill,  and  the  proper 
application  of  splints,  &c.,  by  and  through  the  mere  neglect, 
default,  and  unskilfulness  of  the  defendant,  the  plaintiff  was 
injured. 

It  is,  from  this  statement,  uncertain  whether  it  is  to  be 
insisted  that  the  defendant  was  ignorant,  and  knew  nothing 
of  the  proper  surgical  treatment  of  such  an  accident  as  the 
plaintiff  had  suffered  ;  or  that,  being  properly  educated  and 
competently  learned  in  his  profession,  he  had  acted  from 
negligence  and  carelessness,  contrary  to  what  must  have 
been  his  better  knowledge  and  judgment,  if  he  had  given 
proper  attention  to  the  case. 

Nothing  in  the  declaration  confined  him  to  either  of  these 
views,  and  nothing  had  occurred  in  the  course  of  the  trial  to 
restrict  the  plaintiff  to  the  point  of  negligence. 

He  was  therefore  at  liberty  to  take  his  position  before  the 
jury,  that  the  defendant  was  ignorant  and  unskilful,  or  that 
he  was  negligent  and  careless,  or  if  he  so  pleased,  that  he 
was  both  unskilfid  and  negligent.  Any  evidence,  then,  cal- 
culated to  repel  the  inference  of  ignorance  and  unskilfulness, 
to  show  that  he  was  a  man  of  suitable  education  and  acquire- 
ments for  the  safe  practice  of  his  profession,  must  surely  be 
competent  and  proper.  Such  evidence  must  change  the 
whole  position  of  the  case  before  the  jury,  because  if  the 
jury  were  satisfied  he  had  proper  knowledge  and  skill,  the 
only  question  then  must  be  whether  he  had  adopted  the 
course  of  his  treatment  from  mistake,  mere  error  of  judg- 
ment, or  from  negligence  and  want  of  ordinary  care.  This, 
it  is  obvious,  presents  a  very  different  state  of  the  question 
from  that  where  the  points  of  ignorance,  negligence,  and 
error  are  to  be  considered. 


FRACTUKES  NEAR  ANKLE-JOINT.  219 

As  the  evidence  in  question  seems  to  us  both  pertinent 
and  material,  as  tending  to  show  ordinary  knowledge  and 
skill,  we  are  satisfied  it  should  have  been  received,  and  for 
this  cause  the  case  must  be  sent  back  for  a  new  trial.  We 
have  examined  the  declaration,  and  it  seems  to  us  suffi- 
cient. 

The  evidence  of  the  statements  of  the  witness,  made  out 
of  court,  seem  to  have  been  properly  rejected. 

l^ew  trial  granted." 

Leighton  v.  Saegeant.1 

The  following  is  the  opinion  of  the  court  in  reviewing  the 
second  trial. 

"  Wood,  C.  J.  One  important  question  involved  in  the  trial 
related  to  the  degree  of  skill  possessed  by  the  defendant  as  a 
surgeon.  The  fact  essential  to  be  proved  was,  that  he  was  as 
skilful  as  surgeons  generally  in  the  section  of  country  in 
which  he  practised,  or,  in  other  language,  that  his  skill  was 
equal  to  the  ordinary  skill  of  the  members  of  the  profession 
in  practice.  1.  The  opinion  of  the  physician  with  whom 
the  defendant  studied  his  profession  was  asked,  as  to  the  fact 
whether  he  possessed  '  more  than  the  ordinary  skill  of  the 
members  of  the  profession,,  judging  from  his  acquaintance 
with  them.'  The  court  declined  to  permit  the  inquiry  to  be 
made.  Was  the  ruling  correct  ?  It  was  clearly  matter  of 
opinion  that  was  sought.  An  opinion  was  asked  touching 
the  relative  skill  of  the  defendant,  so  far  as  the  witness  could 
judge.  Had  the  defendant  a  right  to  that  opinion  before  the 
jury  ?  The  general  rule  is,  that  the  opinions  of  witnesses 
are  not  evidence.  To  this  rule,  however,  there  are  some  ex- 
ceptions. In  Rochester  v.  Chester,  3  N.  H.  365,  it  is  said, 
that,  '  on  questions  of  science,  and  trade,  and  others  of  the 
same  kind,  persons  of  skill  may,  no  doubt,  be  permitted  to 
give  their  opinions  in  evidence,  because  the  jury,  being 
wholly  unacquainted  with  the  particulars  on  which  such 
1  11  Foster  (N.  H.),  120. 


220  CIVIL  MALPRACTICE. 

opinions  are  founded,  would  be  unable  to  draw  any  correct 
conclusions  from  hearing  them  stated  ;  for  instance,  was  a 
physician  to  state  the  particular  medicine  administered  to  a 
patient,  from  being  unacquainted  with  the  operation  and 
effect  of  such  medicine,  the  jury  would  be  wholly  incompe- 
tent to  judge  whether  such  treatment  would  probably  pro- 
duce the  death  of  the  patient  or  not.  So  if  a  ship-builder 
should  state  to  a  jury  of  the  country  the  condition  of  a  ves- 
sel, they  would  be  unable  to  judge  whether  she  would  be  sea- 
worthy or  not.  So  should  a  mechanic  describe  to  the  jury  a 
complicated  machine,  constructed  of  different  materials,  with 
which  they  were  unacquainted,  it  would  be  impossible  for 
them  to  judge,  with  any  degree  of  accuracy,  of  its  Talue.' 
These  cases  are  given  as  illustrations  of  the  exceptions  to 
the  general  rule  stated  above.  It  would  seem  from  the  il- 
lustrations that,  when  it  is  supposable  that  juries  can  form 
a  correct  judgment  or  opinion,  without  the  aid  of  the  opin- 
ions of  others,  from  facts  stated,  the  opinions  of  others,  as  a 
general  rule,  are  not  to  be  received  in  evidence.  But  where 
it  is  otherwise,  their  opinions  may  be  received  on  questions 
of  skill  and  science.  In  the  case  before  us,  the  jury,  we 
conceive,  might  well  be  supposed  to  be  able  to  determine 
whether  the  defendant  possessed  '  the  ordinary  skill  of  the 
members  of  the  profession,'  from  the  facts  being  stated  upon 
which  the  witness  might  found  his  own  opinion.  If  the  wit- 
ness knew  the  extent  of  the  knowledge  and  skill  of  the 
members  of  the  profession  generally,  he  might  state  the 
facts  constituting  the  evidence  of  that  knowledge  and  skill 
among  them  generally,  and  also  in  relation  to  the  particular 
individual  in  a  case  like  this ;  and  we  think  that  when  they 
should  be  stated,  the  jury  might  form  a  correct  judgment  as 
to  the  comparative  skill  of  the  profession  generally,  and  of 
this  individual.  A  competent  and  skilful  surgeon  would 
doubtless  well  know,  and  could  easily  state  what  constitutes 
skill  in  another.  And  he  could  describe  the  extent  of  the 
possession  of  the  qualifications  constituting  it  among  the 
profession,  and  also  so  far  as  it  relates  to  the   individual. 


FRACTURES  NEAR  ANKLE-JOINT.  221 

From  such  a  statement  the  jury  could  readily  form  a  judg- 
ment and  make  the  requisite  comparisons.  We  think  there 
was  no  error  in  the  ruling  of  the  court  in  this  branch  of  the 
case. 

2.  We  are  of  the  opinion  that  the  general  reputation  of 
the  Vermont  Medical  Institute,  at  which  it  appeared  that 
the  defendant  had  attended  lectures,  could  have  no  legiti- 
mate bearing  upon  the  question  of  the  skill  of  the  defendant 
as  compared  with  that  of  other  surgeons.  Whatever  that 
reputation  might  be,  the  individual  student  might  possess 
more  or  less  skill  than  others.  The  proficiency  that  one 
makes  in  the  pursuit  of  science  must  depend  mainly  upon 
personal  talent,  and  cannot  be  measured  with  legal  accuracy 
by  the  reputation  of  the  institution  at  which  his  studies  may 
be  pursued. 

3.  We  think,  also,  that  the  ruling  of  the  court  was  cor- 
rect, in  disallowing  the  third  proposed  inquiry  stated  in  the 
case.  The  object  of  the  inquiry  was  to  lay  before  the  jury 
the  evidence  of  what  practice  the  defendant  had  had,  and 
the  cases  he  had  treated,  and  his  course  of  treatment  of 
them,  and  thus  to  show  his  skill.  The  true  objection  to  the 
evidence  proposed  was,  that  it  would  not  show  what  the 
character  of  the  cases  was,  nor  their  treatment,  except  by 
the  defendant's  own  declarations,  which,  being  in  his  favor, 
were  not  evidence. 

4.  The  evidence  proposed  to  be  given  of  cases  in  surgery 
actually  treated  by  the  defendant,  as  showing  his  skill,  was 
properly  rejected.  The  cases  occurred  two  years  after  the 
case  in  question,  and  even  then,  if  he  were  as  skilful  as  the 
rule  of  law  requires,  it  would  not  be  legitimately  shown  that 
he  was  so  skilled  at  the  date  of  the  act  complained  of  in  this 
case.  Skill  possessed  two  years  subsequently  to  the  time  of 
the  act  complained  of  does  not  presuppose  a  like  degree  of 
skill  at  its  date. 

5.  The  fact  that  Dr.  Grover,  a  skilful  surgeon,  assisted 
the  defendant  in  the  treatment  of  the  plaintiff,  could  have 
no  tendency  to  prove  either  the  skill  or  dihgence  of  the 


222  CIVIL  MALPRACTICE. 

plaintiff,  and  particularly  when  taken  in  connection  with  the 
evidence  of  their  disagreement  as  to  the  modes  of  treatment 
pursued  by  the  defendant.  We  do  not  understand  that  Gro- 
ver  attended  by  the  procurement  of  the  defendant,  and  so 
his  attendance  furnishes  no  evidence  of  diligence  on  the  part 
of  the  defendant,  and  their  disagreement  would  not  prove 
his  skill,  Grover  being  confessedly  skilful. 

6.  The  account-books  were  clearly  not  evidence  in  his  fa- 
vor as  to  the  times  of  his  visits  to  other  patients.  They 
were  nothing  more  or  less  than  written  declarations  as  to 
facts  material  to  the  cause  of  the  defendant  made  by  him- 
self. They  might  or  might  not  be  accurately  and  truly 
made.  The  case  of  Batehelder  v.  Sanborn,  2  Foster  R.  325, 
is  a  case  directly  in  point,  to  show  that  the  books  were  not 
competent  evidence  for  the  purpose  for  which  they  were 
offered.  That  action  was  for  flowing  the  plaintiff's  land  by 
means  of  a  dam,  and  the  defendant  justified  upon  the  ground 
of  an  alleged  license  to  build  and  maintain  it.  No  direct 
evidence  was  given  of  the  license,  but  the  second  season 
after  it  was  built  it  was  carried  away  by  a  freshet,  and  the 
defendant  gave  evidence  tending  to  show  that  the  plaintiff 
worked  one  day  in  repairing  the  dam,  and,  after  offering  a 
witness  of  that  fact,  he  offered  in  evidence  his  book  of  ac- 
counts to  establish  the  fact  of  the  day  of  the  date  of  the 
labor.  It  was  decided  that  the  evidence  was  incompetent 
for  that  purpose,  it  being  the  mere  written  statement  of  a 
fact  by  the  party  himself  not  calculated  to  elucidate  it,  and 
deriving  no  credit  from  it.  A  similar  principle  is  recognized 
in  Mattocks  v.  Lyman,  18  Vt.  R.  98. 

7.  The  court  below  was  right  in  instructing  the  jury  that 
the  burden  of  proof  was  on  the  plaintiff  to  show  a  want  of 
proper  knowledge  and  skill  on  the  part  of  the  defendant, 
but  that  it  was  not  necessary  to  prove  it  by  evidence  inde- 
pendent of,  and  unconnected  with,  the  treatment  in  the  case. 

It  is  quite  clear  that  the  treatment  of  the  particular  case 
might  show  such  gross  ignorance  of  the  business  of  the  sur- 
geon as  to  put  it  beyond  all  doubt  that  he  had  not  the 


FEACTURES  NEAR  ANEXE-JOINT.  223 

amount  of  skill  usually  possessed  by  the  profession,  or  even, 
in  fact,  that  he  had  no  knowledge  of  his  profession  at  all. 
It  might  appear  that  the  course  pursued  was  wholly  un- 
known to  the  profession,  and  that  it  resulted,  as  it  necessa- 
rily must,  in  detriment  to  the  patient.  Nothing  further,  cer- 
tainly, would  need  to  be  shown  to  render  one  answerable 
for  an  injury  done,  who  should  offer  his  services  as  a  skilful 
surgeon. 

8.  We  think  the  instruction  to  the  jury  that,  in  estimating 
the  damages,  they  might  consider  the  amount  paid  by  the 
plaintiff  to  the  defendant  for  his  professional  services  in  the 
case,  was,  to  a  certain  extent,  erroneous.  The  damages  to 
which  the  plaintiff  was  entitled  were  those  resulting  from 
the  injury  sustained  by  reason  of  the  unskilful  treatment  of 
the  case.  Of  such  would  be  the  pain,  loss  of  time,  suffering, 
and  increased  delay  in  obtaining  a  cure,  and,  perhaps,  a  per- 
manent injury,  and  an  expenditure  of  money  necessarily 
consequent  upon  the  injury  sustained  by  the  maltreatment. 
The  amount  paid  to  the  defendant,  not  appearing  to  be 
paid  wholly  for  services  to  remedy  the  injury  resulting  from 
the  defendant's  want  of  skill,  can  hardly  be  said  to  be  of  the 
character  of  damages  to  the  plaintiff,  entitling  him  to  recover 
on  that  account,  and  to  that  extent.  It  might  be  that  the 
amount  paid  him  far  exceeded  what  would  have  been  nec- 
essarily incurred  if  the  plaintiff's  case  had  been  properly 
treated,  and  for  that  excess  he  might  well  recover ;  but  the 
direction  to  the  jury  went  further,  and  embraced  the  entire 
sum  paid  the  defendant.  We  think  there  was  error  in  this 
instruction,  as  it  was  stated  to  the  jury.  It  was  not  prop- 
erly limited. 

9.  The  course  of  the  court  in  sending  written  instructions  to 
the  jury,  in  absence  of  the  counsel,  when  called  for,  and  pre- 
serving the  written  request  of  the  jury  was  entirely  justified 
by  the  settled  practice  in  this  State,  as  well  as  by  the  decision 
in  the  case  of  SJiapley  v.  White,  6  N.  H.  Rep.  172.  The  in- 
structions given  were  returned  and  filed  with  the  verdict, 
and  the  request  preserved  by  the  court,  so  that  it  could  be 


224  CIVIL  MALPEACTICE. 

seen  by  counsel  whether  any  erroneous  information  or  direc- 
tion had  been  given  to  the  jury.  No  harm  could  possibly 
result  from  such  a  practice. 

10.  It  is  now  fully  settled,  in  this  State,  that  the  affidavit 
of  a  juror  is  admissible  in  exculpation  of  himself,  and  to  sus- 
tain a  verdict,  but  when  it  relates  to  what  took  place  after 
the  jury  had  retired,  is  wholly  incompetent  to  impeach  it. 
Tenney  v.  Evans,  13  N.  H.  R.  465  ;  State  v.  Ayer,  3  Foster 
R.  801. 

11.  For  the  cause  that  brandy  was  furnished  to  the  jury, 
and  drank  by  several  of  them  while  deliberating  upon  the 
cause,  after  retiring  to  form  their  verdict,  we  think  the  ver- 
dict must  be  set  aside.  The  quantity  drank  was  probably 
small ;  but  we  cannot  consent  that  that  fact  should  make  a 
difference.  We  fully  concur  in  the  remark  made  by  the 
learned  judge  in  People  v.  Douglass,  4  Cow.  36  :  'It  will  not 
do  to  weigh  and  examine  the  quantity  which  may  have  been 
taken  by  the  jury,  nor  the  effect  produced.'  The  cause  al- 
leged, of  slight  illness,  will  not  justify  the  use  made  of  the 
liquor.  The  case  was  not  so  pressing  as  not  to  allow  of  op- 
portunity for  leave  to  be  given  for  its  use,  if  found  to  be 
one  properly  requiring  it.  Brant  v.  Fowler,  7  Cow.  562. 
Many  other  cases  in  the  books  go  quite  far  enough  to  sustain 
this  opinion  in  this  particular. 

12.  No  evidence  having  been  laid  before  us,  in  support  of 
the  charge  of  misconduct,  on  the  part  of  Josiah  Moulton,  of 
course  no  question  arises  respecting  it,  claiming  our  consider- 
ation. Verdict  set  aside." 


IN  DISLOCATIONS.  225 


CHAPTER  VIII. 

alleged  malpkactice  in  dislocations. 

Coleman  v.  Munholland.i 

(Waynesburg,  Chester  Co.  Penn.) 

"  This  was  a  suit  brought  to  recover  damages  for  alleged 
want  of  skill.  The  damages  were  laid  at  $3,000.  The  plain- 
tiff based  bis  case  upon  the  fact  that  his  shoulder  was  put 
out  of  joint  by  being  thrown  from  a  horse  in  December,  1844, 
which,  he  says,  defendant  was  sent  for  to  reduce  to  its  place  ; 
that  he  (Dr.  Munholland)  regularly  attended  him  for  three 
weeks,  applying  bandages  and  other  remedies  for  the  injury; 
that  another  physician  (Dr.  Pennington)  was  called  in  sub- 
sequently, who  pronounced  the  shoulder  still  out  of  joint, 
and  assisted  by  another  physician,  attempted  to  reduce  the 
dislocation,  but  failed.  Some  time  afterwards  Dr.  Penning- 
ton called  and  pronounced  the  shoulder  still  out  of  joint,  and 
took  him  to  Dr.  Atlee,  of  Lancaster,  who  operated  upon 
him.  The  defendant  took  the  ground  that  Coleman  was 
doing  well  under  his  treatment  till  he  went  to  the  fox-chase, 
about  three  weeks  after  the  accident ;  that  prior  to  going  to 
said  fox-chase,  he  was  able  to  raise  his  arm  to  the  top  of  his 
door,  and  bear  some  weight  upon  it. 

Dr.  J,  L.  Atlee,  of  Lancaster,  testified  clearly  as  to  the 
operation  performed  by  him  when  Coleman  was  brought  to 
Lancaster ;  that  the  dislocation  was  then  and  there  perfectly 
reduced,  and  so  continued  when  plaintiff  again  visited  him, 
about  two  weeks  thereafter.     Professor  Atlee,  of  Philadel- 

1  Boston  Medical  and  Surgical  Journal,  vol.  xxxvii.  p.  141. 
14 


226  CIVIL  MALPRACTICE. 

phia,  who  was  present  at  the  operation,  also  testified  to  the 
same  effect.  These  gentlemen  also  testified  that  the  means 
used  by  Dr.  Munholland,  when  he  first  visited  plaintiff,  were 
the  usual  and  proper  ones  ;  that  the  bandaging  of  the  arm 
to  the  body  was  not  necessary  in  all  cases. 

Drs.  Davis,  Coates,  and  Hartman,  also  testified  that  they 
seldom  deem  it  necessary  to  bandage  the  arm  to  the  body  in 
case  of  dislocation  of  the  shoulder.  The  Drs.  Atlee  testified 
that  in  cases  of  dislocation,  attended  by  much  swelling  (as 
in  this  case),  physicians  were  liable  to  be  deceived,  and 
would  sometimes  pronounce  no  dislocation,  when  dislocation 
existed.  Dr.  J.  L.  Atlee  had  known  instances  of  this  in 
physicians  of  respectable  standing  and  long  j)ractice. 

According  to  plaintiff's  statement,  made  when  taken  to 
Lancaster,  as  given  by  Dr.  Atlee,  and  according  to  a  witness 
who  was  present,  the  operation  by  Dr.  Pennington  was  very 
violent,  the  force  applied  powerful  and  long  continued,  —  the 
extension  downward  and  backward, — and  the  pain  conse- 
quent thereon  was  said  by  plaintiff  to  have  been  greater 
than  any  experienced  since  the  accident. 

The  physicians  examined  by  the  defendant  concurred  in 
expressing  the  opinion,  that  it  was  regarded  as  a  breach  of 
professional  etiquette  to  interfere  with  a  patient  in  charge  of 
a  physician,  without  previous  consultation  or  communication 
with  that  physician.  The  defendant  proposed  to  offer  in 
evidence  his  diploma  as  a  physician,  dated  in  1832,  and  also 
to  examine  witnesses  as  to  his  reputation  and  standing  as  a 
physician  and  surgeon  ;  but  being  objected  to  by  plaintiff 
as  inadmissible,  it  was  ruled  out  by  the  court. 

The  jury,  after  an  able  argument  on  both  sides,  rendered 
a  verdict  of  $30  damages." 

Injuries  about  the  shoulder- joint  are  frequently  followed 
by  wasting  of  the  deltoid,  the  large  triangular  muscle  that 
covers  in  the  shoulder,  and  when  this  occurs,  the  bony  prom- 
inences about  the  joint  become  quite  marked,  leading  the 
surgeon,  who  examines  it  several  months  after  the  injury,  to 
suppose  that  there  was  a  fracture  or  a  partial  dislocation, 


IN  DISLOCATIONS.  227 

whicli  had  been  overlooked  by  the  surgeon  first  in  charge. 
This  error  has  been  fallen  into  by  surgeons  of  more  than 
ordinary  skill.  Especially  old  united  fractures,  through  the 
tuberosities  of  the  humerus,  very  often  present  remarka- 
ble deformity,  closely  simulating  dislocations^  and  are  well 
calculated  to  lead  surgeons  into  error.  Dislocations  of  the 
shoulder  are  quite  apt  to  recur,  and  probably  did  occur  after 
proper  reduction  in  this  case. 

BUGAED  V.    GkOSS.I 
(Court  C.  P.  Buffalo,  Erie  Co.  N.  Y.,  June  Term,  1847.) 

ABSTRACT   OF  EVIDENCE. 

"The  plaintiff  is  twenty-three  years  old,  farmer  by  oc- 
cupation, and  of  good  habits.  Defendant  is  a  botanic  and 
root  doctor,  practising  in  Williamsville,  not  far  from  Eleven 
Mile  Creek. 

On  the  17th  of  September  last,  about  nine  months  since, 
plaintiff  was  chopping  a  log  in  the  woods,  and  by  the  sud- 
den displacement  of  that  portion  upon  which  he  was  stand- 
ing, he  was  thrown  backwards,  striking  upon  the  corner  and 
back  part  of  the  humerus.  Two  or  three  hours  afterwards 
he  was  seen  by  the  defendant,  who  upon  examination  said 
it  was  out  of  joint,  and  perhaps  broken,  and  after  pouring 
warm  water  on  it  about  ten  minutes  to  reduce  the  swelling, 
he  employed  extension  and  counter-extension  in  a  straight 
line,  and  professed  to  have  reduced  it,  yet  the  arm  now,  as 
before,  could  not  be  flexed,  except  very  slightly.  Defendant 
then  applied  two  shingle  splints,  one  to  the  arm,  extending 
from  the  outer  condyle  of  the  humerus,  upwards  about  three 
inches,  and  the  other  from  the  coronoid  process  downward 
on  the  fore-arm,  about  the  same  distance:  for  what  purpose 
these  splints  were  applied  was  never  attempted  to  be  shown. 
The  arm  was  then  suspended  by  the  side  of  the  body  in  a 
nearly  straight  line,  and  secured  by  a  couple  of  handkerchiefs. 
1  Boston  Medical  and  Surgical  Journal,  vol.  xxxvii.  p.  162. 


CIVIL   MALPRACTICE. 

September  18tli.  Defendant  took  the  splint  off,  and  wit- 
ness noticed  that  the  bones  were  not  in  place.  Defendant 
said  it  was  '  swelled  up  so  bad  he  could  hardly  tell  if  it  was 
right  or  not.'  The  same  dressings  were  re-applied,  and  the 
arm  placed  in  the  same  extended  position,  the  only  one  in 
which  it  could  be  kept.  Defendant  also  gave  plaintiff  a 
liniment  to  reduce  the  swelling,  which  '  burnt  like  fire,'  and 
produced  excoriations.  Defendant  then  said,  '  Put  warm 
water  in  a  bottle,  and  put  it  by  the  arm ;  may  be  he  catched 
cold  the  night  before,  because  he  suffered  so  much.'  Said 
he  once  set  an  ankle  which  had  been  out  six  times,  &c. 

19th.  Defendant  examined  it  again,  and  said  it  was  not 
right,  that  plaintiff  had  got  it  out  of  place  (although  it  did 
not  appear  but  that  he  had  been  extremely  careful).  Having 
again  poured  warm  water  on  it  during  five  minutes  to  reduce 
the  swelling,  and  make  it  yield  better,  two  men  were  directed 
to  make  extension  and  counter-extension  in  a  straight  line, 
while  defendant  manipulated  at  the  elbow.  After  about 
one  minute's  pulling.  Gross  said  he  guessed  it  was  in,  and 
the  men  ceased  pulling.  The  arm,  however,  remained  as 
before,  nearly  straight,  and  the  deformity  at  the  elbow  con- 
tinued. 

The  same  splints  and  liniment  were  re-applied,  with  further 
directions  to  pour  milk  under  the  dressings  if  the  liniment 
smarted  too  much.  When  defendant  went  out  he  said,  '  They 
generally  have  an  iron  box  to  set  the  elbow  in,  but  I  have 
not  got  one  myself,  I  will  get  one  of  Dr.  Ham,'  &c. 

22d.  Defendant  removed  the  dressings  and  tried  to  bend 
the  arm,  but  could  not.  Saw  an  ecchymosis  in  axilla,  and 
directed  fomentations  of  wormwood  and  vinegar  to  be  ap- 
plied. The  same  splints  were  re-applied,  and  the  liniment 
continued.  Gross  said  it  was  '  gaining  very  fast  —  it  was 
right.' 

This  treatment  was  continued  eighteen  days,  and  the  arm 
was  then  left  in  its  present  shape  and  position.  About  three 
or  four  weeks  after  the  occurrence  of  the  accident,  the  plain- 
tiff called  upon  the  defendant ;  the  defendant  proposed  to 


IN  DISLOCATIONS.  229 

'  break  it  over  again,'  and  sent  plaintiff  to  Buffalo  for  the 
opinion  of  Drs.  Hill  and  Davis,  both  Thompsonians. 

The  testimony  as  to  the  facts  having  closed,  Drs.  Hamil- 
ton and  Sprague  were  examined  as  to  their  professional 
opinions,  &c. 

Dr.  Hamilton  testified  that  he  had  seen  the  arm,  that  it 
is  a  backward  luxation  of  radius  and  ulna ;  arm  is  nearly 
straight  and- admits  of  but  very  slight  motion  at  elbow-joint; 
thinks  it  was  always  the  same  luxation,  and  without  fract- 
ure ;  thinks  the  luxation  could  have  been  easily  diagnosed 
within  two  or  three  hours  after  the  accident.  The  swelling 
could  not  have  been  great  at  that  time,  or  it  would  have  ob- 
literated the  fossa  between  the  olecranon  and  the  inner  con- 
dyle, which  one  of  the  witnesses  swears  was  as  manifest  then 
as  now;  if  a  fracture  of  any  of  the  bones  about  the  point 
had  actually  existed,  it  would  be  apparent  now,  since  the 
treatment  was  not  such  as  would  be  proper  for  any  fracture 
about  the  elbow-joint,  and  a  deformity  at  the  point  of  fract- 
ure must  have  resulted.  The  reduction  of  this  luxation  at 
an  early  hour  is  easily  effected,  —  always  bends  the  fore-arm 
upon  the  arm  to  displace  the  coronoid  process  from  the  fossa 
of  the  humerus.  This  is  the  practice  of  all  modern  surgeons 
except  Liston.  Liston  straightens  the  arm,  but  carries  it 
far  back  so  as  completely  to  relax  the  triceps.  The  plan 
described  by  the  witnesses  as  pursued  by  the  defendant  was 
not  the  same ;  he  pulled  in  a  straight  line  and  directly  for- 
wards, which  put  the  triceps  upon  the  stretch.  It  would 
require  very  great  power  to  reduce  the  arm  in  this  way.  If 
it  were  reduced,  it  could  have  been  bent  up  to  at  least  a  right 
angle.  This  is  the  position  in  which  it  ought  to  have  been 
placed  ;  no  splints  were  necessary.  We  sometimes  use  a 
movable  right-angled  splint,  when  it  is  a  child,  who  will 
tumble  about,  but  the  splints  employed  could  not  have  been 
of  the  least  service.  The  application  of  stimulating  lini- 
ments was  bad  treatment.  The  reduction  could  not  have 
been  so  easily  effected  on  the  third  as  on  the  first  day  ;  if  it 
be  true  that  fractures  can  be  as  well  reduced  after  a  few  days 


230  CIVIL  MALPEACTICE. 

as  at  first,  it  certainly  is  not  so  with  dislocations  —  every  day 
increases  the  difficulty.  Dislocated  elbow,  radius,  and  ulna 
backwards,  have  been  reduced  after  several  weeks,  but  gen- 
erally the  witness  would  be  unwilling  to  make  the  attempt 
after  six  weeks.  There  is  danger  to  the  limb  when  the  at- 
tempt is  made  at  two  weeks,  and  witness  would  so  state  to 
the  patient  before  attempting  the  reduction. 

Dr.  Sprague  testified  that  he  had  examined  the  arm ;  it  is 
deformed  ;  there  is  a  dislocation  of  the  radius  and  ulna  back- 
wards ;  bones  are  situated  in  this  manner  (showing  the  po- 
sition of  the  bones  upon  a  skeleton  of  an  arm  which  was 
handed  him)  ;  the  coronoid  process  is  lodged  in  the  fossa  of 
the  humerus.  Witness  reduces  this  dislocation  by  bending 
the  arm  forcibly  across  the  knee  or  around  the  back  of  a 
chair,  and  then  he  sometimes  suddenly  brings  it  straight. 
The  course  pursued  by  the  defendant  would  not  be  likely  to 
reduce  bones ;  the  splints  used  in  this  case  could  not  have 
been  of  any  service;  the  arm  ought  to  have  been  kept  at 
right  angles  ;  generally  no  great  difficulty  in  discovering  this 
dislocation ;  not  very  liable  to  get  out  of  place ;  would  not 
generally  attempt  to  reduce  a  dislocation  of  this  kind  after 
five,  six,  or  seven  weeks. 

Dr.  M.  W.  Sill  (a  botanic  physician  of  Buffalo)  testified, 
on  the  part  of  the  defence,  that  plaintiff  came  into  his  office 
in  February ;  said  he  came  to  have  his  arm  examined ; 
defendant  came  with  him ;  wished  to  know  what  could  be 
done  with  it.  Dr.  Hill  examined  and  then  took  him  into 
Dr.  Field's  office  (an  oculist).  Dr.  Hill  said  he  was  for- 
merly of  the  old  school,  but  is  now  a  botanic  doctor.  Dr. 
Hill  advised  him  to  go  to  some  other  doctor,  —  Dr.  Sprague, 
he  thinks. 

Dr.  Wm.  Field  testified  that  he  had  heard  Dr.  Hill,  and 
concurred  in  all  his  statements. 

Dr.  Davis  (botanic  doctor)  testified  only  in  I'elation  to  the 
mental  condition  of  one  of  defendant's  witnesses. 

Verdict  $1,000  for  plaintiff ." 


IN  DISLOCATIONS.  231 

If  it  was  Professor  Hamilton  who  gave  the  above  testi- 
mony, "always  bends  arm,"  &c.,  be  does  not  now  "  always," 
&c.     (Fract/and  Dis.  632,  5tb  ed.) 


Seae,e  v.  Prentice.! 

*'  This  was  an  action  on  the  case  brought  by  the  plain- 
tiff, a  shoemaker,  against  the  defendant,  whom  he  had  em- 
ployed as  a  surgeon,  for  negligently,  ignorantly,  and  un- 
skilfully reducing  a  dislocated  elbow  and  fractured  arm  of 
the  plaintiff,  of  which  he  had  undertaken  the  cure.  The 
case  was  tried  before  Heath,  J.,  at  the  last  assizes  at  Hert- 
ford ;  and  a  verdict  having  been  given  for  the  defendant, 
under  the  direction  of  the  learned  judge,  that  direction  was 
now  impeached  and  a  rule  nisi  for  setting  aside  the  verdict 
and  granting  a  new  trial  was  moved  for  by  Gurney^  upon 
the  ground  that  there  was  evidence  laid  before  the  jury  of 
the  unskilful  treatment  of  the  plaintiff  by  the  defendant ; 
but  that  they  were  told  by  the  learned  judge,  that  unless 
negligence  were  'proved  they  could  not  examine  into  the 
want  of  skill ;  and  the  evidence,  he  now  admitted,  did  not 
substantiate  the  charge  of  negligence  though  it  proved  want 
of  skill.  And  he  referred  to  Slater  v.  Baker,  2  Wilson,  359, 
to  show  that  an  action  lay  against  a  surgeon  for  ignorance 
and  unskilfulness  in  his  profession,  and  to  Bull,  N.  P.  73, 
where  the  general  rule  is  laid  down,  that  in  all  cases  where 
damages  accrue  to  another  by  the  negligence,  ignorance,  or 
misbehavior  of  a  person  in  the  duty  of  his.  trade  or  calling, 
an  action  on  the  case  will  lie,  —  as  if  a  farrier  kill  my  horse 
by  bad  medicine,  or  refuse  to  shoe,  or  prick  him  in  the  shoe- 
ing. 

The  court  granted  a  rule  nisi.  And  now  upon  the  judge's 
report  being  read,  the  case  appeared  to  be  this  :  — 

The  plaintiff's  brother-in-law  proved  on  his  behalf,  that 
on  the  2d  of  April,  1805,  the  defendant  attended  the  plain- 
tiff, who  had  fallen  from  a  horse,  and  told  the  defendant  that 
1  8  East,  348,  April  29,  1807,  47  G.  3. 


232  CIVIL  MAIiPRACTICE. 

his  arm  was  broken  ;  the  defendant  said  he  thought  the  arm, 
which  was  swollen,  was  not  broken,  and  applied  vinegar  to 
it  and  bound  it  with  tape.  That  the  plaintiff  was  under  the 
defendant's  care  for  ten  weeks  without  being  cured.  He 
then  applied  to  Mr.  Kingston,  another  surgeon,  and  after 
some  time  could  work  and  put  his  arm  to  his  head.  On 
cross-examination  the  same  witness  proved  that  the  defend- 
ant was  first  sent  for  at  night  and  came  directly  :  that  he 
regularly  attended  the  plaintiff  every  day  but  one  till  the 
latter  applied  to  Mr.  Pidcock,  another  surgeon,  who,  about 
nine  or  ten  days  after  the  accident,  attended  and  assisted 
with  the  defendant  in  setting  the  elbow. 

Mr.  Kingston,  the  surgeon,  then  proved  that  in  July, 
1805,  the  plaintiff  was  brought  to  him,  a  cripple  in  his  arm, 
one  bone  of  which  was  broken  obliquely  below  the  elbow ; 
that  the  plaintiff's  arm  was  almost  straight ;  he  could  not 
turn  his  wrist,  and  had  no  motion  in  the  elbow ;  that  the 
witness  broke  the  callus  and  set  it  again,  and  made  (what 
the  witness  himself  described  as)  a  very  fine  cure,  which 
was  spoken  of  about  the  country.  He  imputed  the  failure 
of  the  defendant  in  his  attempt  to  cure  the  plaintiff  to  neg- 
ligence and  carelessness  ;  an  apprentice  boy  (he  said)  might 
have  known  better ;  that  the  bone  might  have  been  set 
within  five  hours  after  the  accident ;  though  he  admitted 
that  the  swelling,  if  much,  must  first  be  reduced,  which 
might  take  a  fortnight.  And  he  recommended  the  plaintiff 
to  bring  an  action.  He  also  spoke  of  a  conversation  with 
the  defendant,  who  considered  it  as  a  very  difficult  disloca- 
tion to  reduce  ;  and  said  he  would  make  a  compensation  to 
the  plaintiff. 

The  learned  judge  told  the  jury  that  the  gist  of  the  ac- 
tion was  negligence,  of  which  direct  evidence  might  be  given  ; 
or  it  might  be  inferred  by  the  jury  if  the  defendant  had  pro- 
ceeded without  any  regard  to  the  common,  ordinary  rules  of 
his  profession.  That  unskilfulness  alone,  without  negligence, 
would  not  maintain  the  action.  And  that  he  was  at  a  loss 
to  state  to  the  jury  what  degree  of  skill  ought  to  be  required 


IN  DISLOCATIONS.  233 

of  a  village  sursjeon.  But  that  -whether  or  not  his  directions 
were  accurate  in  this  respect,  at  any  rate  the  witness  King- 
ston imputed  only  negligence  and  carelessness  to  the  defend- 
ant and  Pidcock,  in  not  discovering  the  fracture  of  the  bone 
of  the  arm  when  they  reduced  the  dislocated  elbow,  —  which 
there  was  no  doubt  was  properly  reduced ;  and  that,  consid- 
ering all  the  circumstances  of  the  case,  he  did  not  think  that 
such  gross  negligence  was  imputable  to  the  defendant  as  to 
make  him  liable  in  damages  to  the  plaintiff.  The  report 
concluded  by  stating  that  the  jury  found  a  verdict  for  the 
defendant,  much  to  the  judge's  satisfaction ;  who  intimated 
that  the  vaunting  language  of  the  witness  Kingston  must 
have  diminished  his  credit  with  the  jury. 

Shepherd^  Serjt.,  ^  Espinasse  were  now  to  have  shown 
cause  ;  but,  though  all  the  court  seemed  to  be  satisfied,  as 
well  now  as  when  the  rule  was  moved  for,  that  the  action 
well  lay  for  unskilfulness  in  the  profession  of  a  surgeon,  yet, 
upon  a  revision  of  the  evidence  as  reported,  they  asked  of 
the  plaintiff's  counsel  what  evidence  there  was  of  want  of 
skill  in  the  defendant,  —  Kingston,  the  surgeon,  only  imputing 
to  him  negligence  and  carelessness,  which  the  learned  judge 
had  stated  to  be  a  ground  of  action,  and  had  left  to  the  jury 
for  their  consideration,  but  which  the  jury  had  negatived; 
as  indeed  the  evidence  well  warranted  them  in  doing. 

Grurney,  in  support  of  the  rule,  said  that  it  was  to  be  col- 
lected from  the  whole  of  Kingston's  evidence  that  he  im- 
puted want  of  skill  to  the  defendant ;  and  that  was  shown 
by  the  expression  used  by  him,  that  an  apprentice  boy  might 
have  known  better.  That  so  much  skill  at  least  was  re- 
quired of  a  surgeon  as  to  be  able  to  tell  whether  or  not  an 
arm  was  broken  or  an  elbow  dislocated.  But  it  was  enough 
that  the  question  of  want  of  skill  was  wholly  withdrawn 
from  the  consideration  of  the  jury. 

Lord  Ellenboeough,  C.  J.  The  surgeon  who  was  exam- 
ined specifically  imputed  failure  of  cure  to  negligence  and 
carelessness,  whatever  other  expressions  he  may  have  used 
in  the  manner  of  giving  his  evidence,  upon  which  the  learned 


234  CIVIL  MALPRACTICE. 

judge  has  commented.  Therefore,  however  we  may  differ 
from  the  learned  judge,  as  I  certainly  do,  in  thinking  that 
an  ordinary  degree  of  skill  is  necessary  for  a  surgeon  who 
undertakes  to  perform  surgical  operations,  which  is  proved 
by  the  case  of  Wilson,  and  indeed  all  analogous  authorities, 
in  the  same  manner  as  it  is  necessary  for  every  other  man  to 
have  it  in  the  course  of  his  employment ;  as  a  farrier  who 
undertakes  to  cure  my  horse  must  have  common  skill  at  least 
in  his  business,  and  that  is  implied  in  his  undertaking  ;  and 
although  I  am  ready  to  admit  that  a  surgeon  would  be  liable 
for  crassa  ignorantia,  and  would  be  justly  responsible  in 
damages  for  having  rashly  adventured  iipon  the  exercise  of 
a  profession  without  the  ordinary  qualification  of  skill,  to  the 
injury  of  the  patient ;  3^et  the  question  did  arise  upon  the 
evidence  in  this  case  ;  for  no  want  of  skill  was  imputed  to 
the  defendant,  and  therefore  the  opinion  of  the  learned  judge 
upon  that  point  does  not  affect  the  merits  of  the  verdict  upon 
the  evidence  in  the  cause." 

The  other  judges  concurred,  and  GROSS,  J.,  referred  to 
3  Black.  Com.  c.  9,  pp.  163-64,  as  confirming  the  general 
doctrine.^ 

Carpenter  v.  Blakb.^ 

"  MuLLiN,  P.  J.  On  the  28th  of  June,  1866,  the  plaintiff 
was  thrown  from  a  horse  she  was  riding,  in  the  village  of 
Dansville,  in  Livingston  County,  and  her  elbow- joint  was 
dislocated.  The  defendant  was  a  practising  physician  and 
surgeon,  residing  in  Dansville,  and  was  called  to  set  the 
limb.  The  plaintiff  insists  that  the  bones  were  never  re- 
stored to  their  places,  or,  if  they  were,  that  proper  measures 
were  not  taken  to  keep  them  there,  and  that  the  result  is 
that  the  joint  has  become  stiff,  and  the  arm  almost  useless. 

1  Vide  Esp.  Dig.  601,  or  vol.  ii.  p.  222,  of  New  York  edition  ;  Lipscombe  v. 
Holmes,  2  Campb.  441,  and  reporter's  note  thereto,  pp.  442-43.  In  Dr.  Groen- 
velt's  case,  cited  in  Espitiasse,  601,  the  rule  is  laid  down,  "  that  any  deviation 
from  the  established  practice  shall  be  deemed  sufficient  to  cliargo  the  surgeon 
with  malpractice,  in  case  of  an  injury  arising  to  the  patient." 

2  60  Barb.  (N.  Y.)  488. 


IN  DISLOCATIONS.  235 

There  was  a  verdict  in  favor  of  the  plaintiff,  on  which 
judgment  was  rendered,  and  from  that  judgment  the  defend- 
ant appeals. 

The  defendant  took  sundry  exceptions  to  the  rulings  of 
the  court,  in  admitting  and  rejecting  evidence,  and  to  the 
charge  to  the  jury,  and  to  refusals  to  charge  as  requested, 
which  I  will  consider  in  the  order  they  are  presented  in  the 
points  of  his  counsel. 

The  first  exception  is  to  overruling  the  defendant's  objec- 
tion to  the  question  put  by  the  plaintiff's  counsel  to  the  wit- 
ness. Dr.  Campbell,  'What  would  be  likely  to  be  the  conse- 
quences of  an  omission  to  flex  the  arm  and  rotate  it  as  you 
have  described  ?  '  The  reply  of  the  witness  was  not  an  an- 
swer to  the  question,  and  he  did  not  answer  it.  He  said 
'  No  ;  no  one  of  the  things  is  a  certain  sign  that  the  bones 
are  in  place,  and  everything  right ;  all  of  them  put  together 
would  make  it  very  certain  that  it  was  in.  None  of  them 
would  harm,  and,  in  the  exercise  of  ordinary  prudence  and 
care,  it  would  be  the  duty  of  the  operator  to  resort  to  them.' 
The  question  was  repeated  without  objection,  and  was  not 
even  then  answered.  The  defendant  was  not  prejudiced  by 
the  ruling. 

The  second  exception  is  to  overruling  the  defendant's  ob- 
jection to  the  following  question :  '  What  about  the  possi- 
bility of  an  arm  being  stiff,  and  straight  two  months  after 
a  dislocation?  The  injury  on  the  28th  of  June  being  stiff, 
and  straight,  and  the  bones  in  place,  on  the  26th  of  August, 
do  you  think  the  bones  could  get  out  of  place  by  the  28th 
of  August  without  external  violence  ?  The  defendant's  coun- 
sel objected  to  the  question,  on  the  ground  that  Drs.  Endress 
and  Blake  had  not  said  the  arm  was  straight  and  stiff.  The 
objection  assumes  that  the  question  was  predicated  on  the 
testimony  of  the  defendant  and  Endress,  but  it'  does  not 
appear  that  the  plaintiff's  counsel  so  intended.  Indeed, 
there  was  evidence  of  other  witnesses  which  would  justify 
the  assumption  of  the  facts  stated  in  the  question. 

But  assuming  that  the  question  was  based  on  the  evidence 


236  CIVIL  MALPEACTICE. 

of  Endress  and  the  defendant.  The  plaintiff  had  testified  that 
on  Sunday,  the  28th  of  August,  she  was  at  the  defendant's 
house,  at  his  request,  and  he  and  Dr.  Endress  examined  the 
arm.  The  defendant  testified  that  on  that  day  he  examined 
the  arm  and  found  it  perfectly  straight,  and  the  hand  supi- 
nated;  that  is,  with  the  palm  turned  up.  The  bones,  he 
thought,  were  then  in  place  ;  he  did  not  see  how  it  could  be 
out  of  place  and  be  straight.  Dr.  Endress  testified  that  on 
the  28th  of  August  the  arm  was  straight  and  stiff.  Dr. 
Endress  uses  the  very  words  of  the  question.  Dr.  Blake 
described  the  arm  as  straight,  and  says  that  he  supposed  the 
stiffness  of  the  arm  was  caused  by  the  muscles,  thus  assum- 
ing that  the  joint  was  stiff,  as  it  unquestionably  was  ;  from 
the  time  it  was  set,  stiffness  was  one  of  the  natural  results 
of  the  injury,  and  it  was  to  overcome  it  that  the  defendant, 
on  repeated  occasions,  urged  the  plaintiff  to  rotate  and  flex 
it.  No  injury  was  done  to  the  defendant  in  assuming  as  a 
fact  what  was  repeatedly  proved,  and  repeatedly  referred  to 
by  the  defendant  himself,  that  the  joint  was  stiff,  although 
the  words  straight  and  stiff  may  not  have  been  used  together 
at  the  time  referred  to  in  the  question. 

The  plaintiff's  counsel  embraced,  in  one  of  the  questions 
on  the  subject,  the  condition  of  the  arm  on  the  1st  of  Sep- 
tember, the  day  on  which  the  arm  was  reset  by  Drs.  Reynale, 
Endress,  and  Blake.  After  administering  chloroform,  the 
arm  was  readily  bent,  and  this  bending  was  relied  on  by  the 
defendant's  counsel  as  evidence  that  the  bones,  on  that  occa- 
sion, were  in  their  places ;  that  they  were  so  from  the  time 
they  were  originally  set.  To  meet  and  rebut  this  proof  phy- 
sicians were  afterwards  called  by  the  plaintiff  to  testify  that 
it  was  possible  to  bend  the  joint  to  a  very  considerable  ex- 
tent, even  if  the  bones  were  not  in  place.  When  Dr.  Moore 
saw  the  arm,  in  the  latter  part  of  August,  the  joint  was  then 
dislocated,  and  of  course  the  bones  were  not  in  their  places ; 
and  unless  they  could  be  thrown  in  and  out  of  place,  at  the 
will  of  the  plaintiff,  or  by  the  action  of  the  muscles  alone, 
the  inference  might  be  that  they  were  not  in  place  on  either 


IN  DISLOCATIONS.  237 

of  the  occasions  when  examined  by  the  defendant,  Endress, 
and  Reyuale.  I  cannot  agree  with  the  defendant's  counsel 
that  the  word  '  stiff '  is  used  in  the  question  in  the  sense 
that  the  arm  had  become  rigid  from  the  adhesion  of  the 
bones  at  the  joint.  It  meant  in  the  question  precisely  what 
is  meant  in  the  testimony  of  the  defendant  and  Endress,  — 
whether  it  was  caused  by  the  muscles  or  by  the  adhesion  of 
the  bones.  There  was  not  a  false  assumption  of  the  facts 
stated  in  the  question,  and  the  objection  was  properly  over- 
ruled. 

The  third  exception  is,  that  the  nonsuit  was  improperly 
refused.  The  motion  for  a  nonsuit  rested  on  the  proposition 
that  there  was  no  evidence  in  the  case  that  would  justify  the 
finding  by  the  jury  that  the  defendant  had  been  guilty  of 
any  neglect,  or  want  of  the  requisite  care  and  skill  in  reduc- 
ing the  luxation  in  the  first  instance,  or  in  treating  the  arm 
afterwards.  The  defendant's  counsel  insists  that  the  dislo- 
cation was  properly  reduced,  and  the  joint  remained  in  its 
place  until  the  defendant  was  discharged  and  another  sur- 
geon called.  Whether  this  proposition  was  established  was 
a  question  for  the  jury  upon  conflicting  evidence,  and  they 
have  found  against  the  defendant ;  and  that  finding  we  can- 
not disturb.  All  the  surgeons  agree  that  the  general  rule 
is,  that  in  cases  of  dislocation  the  patient  is  able  to  know 
when  the  bones  are  restored  to  their  places  by  the  noise 
made  when  they  fall  into  place,  and  by  the  immediate  relief 
from  pain.  The  plaintiff  did  not  hear  the  '  snap,'  as  it  is 
called,  nor  was  the  pain  lessened.  On  the  evidence,  the  jury 
were  justified  in  finding  that  the  bones  were  never  restored 
to  their  places ;  and  no  surgeon,  except  the  defendant  and 
Endress,  has  ventured  to  express  an  opinion  that  the  disloca- 
tion was  ever  reduced.  The  defendant  says  that,  when  he 
set  the  joint,  he  extended  and  rotated  the  arm,  and  thus  sat- 
isfied himself  that  the  bones  were  in  place.  The  plaintiff 
says  he  did  neither.  It  may  be  that  the  defendant  was  in 
better  condition  to  know  what  he  did  on  that  occasion,  and 
to  remember  it,  than  the  plaintiff,  but  it  was  for  the  jury  to 


238  CIVLL  MALPRACTICE, 

say  to  which  they  would  give  credit ;  and  there  are  circum- 
stances which  tend  to  show  that  the  defendant  did  not 
bestow  either  much  time  or  attention  to  setting  the  joint, 
and  dressing  the  arm. 

It  is  conceded,  on  all  hands,  that  it  was  his  duty  to  apply 
his  hands,  and  thus  satisfy  himself  that  the  bones  were 
brought  into  place ;  and  whether  brought  into  place,  could 
be  ascertained  with  reasonable  certainty  by  reference  to  the 
position  of  the  condyles  and  olecranon  process. 

The  defendant  says  that  he  applied  these  tests,  and  the 
plaintiff  says  he  did  nothing  but  draw  the  arm  around  his 
knee  and  place  it  on  a  pillow  at  her  side,  bent  to  nearly  a 
right  angle.  The  plaintiff's  sister  and  niece  were  present, 
but  neither  were  inquired  of  whether  he  did  or  did  not  do 
what  he  claims  to  have  done.  It  would  seem  that  when  the 
limb  extends  and  rotates  freely,  it  is  ordinarily  sufficient 
evidence  that  the  bones  are  in  place.  But  if  there  is  any 
doubt  about  it,  it  is  the  duty  of  the  surgeon  to  measure  the 
arm.  This  the  defendant  concededly  did  not  do.  It  was 
for  the  jury  to  say  whether,  upon  the  evidence  of  the  plain- 
tiff and  defendant,  it  was  established  to  their  satisfaction 
that  the  defendant  did  not  use  the  means  which  experience 
has  shown  to  be  proper  and  necessary  in  order  to  j  ustif y  the 
surgeon  in  assuming  that  he  had  restored  the  bones  to  their 
places,  and  thus  secured  the  patient  from  great  suffering,  and 
perhaps  the  loss  of  the  use  of  the  limb. 

The  plaintiff  and  the  witness  Leach  saw  the  protuberance 
at  the  elbow-joint  the  night  of  the  injury,  and  Miss  Miller 
says  it  was  spoken  of  that  evening  at  the  house  ;  it  was  so 
prominent  as  to  attract  the  attention  of  Leach ;  he  compared 
it  with  the  other  elbow,  and  inquired  what  it  was.  "Now  this 
protuberance  was  evidence,  to  a  surgeon,  that  the  bones  were 
not  in  their  places  ;  it  was  plain  to  be  seen,  as  there  was,  at 
the  time  the  defendant  set  the  joint,  and  afterwards,  when 
Leach  was  there,  no  swelling  to  conceal  it. 

It  was  for  the  jury  to  say  whether  the  failure  to  discover 
this  evidence  of  the  omission  to  restore  the  bones  to  their 


IN  DISLOCATIONS.  239 

places  was  evidence  of  want  of  attention  or  of  want  of  skill  ; 
and  if  it  was  evidence  of  either,  it  was  very  significant.  It 
appears  that  the  arm  retained,  when  not  controlled  by 
splints,  about  the  same  position  it  was  in  after  the  first 
attempt  to  reduce  the  dislocation,  and  at  no  time  could  the 
plaintiff  move  it  without  producing  severe  pain.  The  de- 
fendant insisted  she  must  move  it,  and  when  she  attempted 
it  the  pain  was  so  great  she  had  to  call  in  help,  then  had  to 
cease  the  attempt  because  of  the  suffering  it  caused.  This 
was  known  to  the  defendant,  and  yet  it  does  not  seem 
to  have  put  him  on  inquiry  whether  he  had  not  failed  to 
properly  set  or  treat  the  arm.  The  plaintiff  was  satisfied 
the  joint  was  never  properly  set,  and  she  so  told  the  defend- 
ant ;  and  to  ascertain  whether  her  suspicions  were  well 
founded,  she  called  on  Dr.  Moore,  and  finally  employed  Dr. 
Reynale  to  endeavor  to  restore  her  the  use  of  it.  It  is  quite 
obvious  that  the  work  to  be  done  by  Reynale  was  not  under- 
stood by  him  and  those  assisting  him,  to  be  to  the  patient  a 
painless  effort  —  as  it  would  be  if  it  was  merely  putting  in 
place  bones  that  would  fall  into  and  out  of  place  by  their 
own  weight,  or  at  the  will  of  the  patient.  They  prepared 
her  for  it,  by  rendering  her  so  unconscious  that  she  did  not 
feel  a  pin  when  inserted  in  the  flesh.  They  then  bent  the 
arm  and  put  on  bandages,  and  she  awoke  to  realize  the  suf- 
fering to  which  the  operation  had  subjected  her.  The  arm 
in  a  short  time  returned  to  its  original  position,  and  has  re- 
mained there  ever  since.  Now  all  this  occurred  after  the 
defendant  abandoned  the  arm,  but  it  reflects  very  much  light 
upon  the  important  question  in  issue  here,  —  whether  the  dis- 
location was  ever  reduced.  The  evidence  satisfies  me  that  it 
was  not,  and  that  there  was  a  great  want  of  care  and  skill  in 
the  attempt  to  replace  the  bones,  or  in  the  subsequent  treat- 
ment of  the  arm.  The  surgeons  disagreed  as  to  the  neces- 
sity of  putting  the  arm  in  a  sling  after  the  dislocation  is  re- 
duced, some  insisting  that  it  was  necessary  in  order  to  pre- 
vent a  reluxation,  which  might  occur  if  the  arm  was  left 
without  using  this  means  of  preventing  it ;  while  others  insist 


240  CIVIL   MALPEACTICE. 

that  it  is  enough  to  leave  the  cure  to  nature,  the  surgeon 
merely  ajoplying  or  directing  the  application  of  cold  water  to 
the  limb,  in  order  to  keep  down  inflammation.  The  defend- 
ant did  not  use  a  sling,  and  it  was  for  the  jury,  after  weigh- 
ing the  reasons  assigned  by  the  surgeons  for  and  against  the 
use  of  it,  to  say  whether  it  was  negligence  in  the  defendant 
to  omit  it.  The  defendant's  counsel  insists  that  as  it  is 
shown  that  surgeons  do  not  agree  in  regard  to  the  propriety 
of  the  use  of  the  sling,  the  jury  were  not  at  liberty  to  find 
there  was  negligence  on  the  part  of  the  defendant  in  omitting 
it.  I  cannot  assent  to  this  proposition,  thus  broadly  stated. 
If  writers  on  the  treatment  of  dislocations,  or  if  in  the  ab- 
sence of  such  authority  practical  surgeons  prescribe  a  mode 
of  reducing  them,  and  treating  the  joint  after  the  bones  are 
replaced,  it  is  incumbent  on  surgeons  called  to  treat  such  an 
injury  to  conform  to  the  system  of  treatment  thus  estab- 
lished ;  and  if  they  depart  from  it,  they  do  it  at  their  peril. 
In  2  Espinasse's  N.  P.  601,  it  is  said,  it  seems  that  any  devi- 
ation from  the  established  mode  of  practice  shall  be  deemed 
sufficient  to  charge  the  surgeon  with  negligence,  in  case  of  an 
injury  arising  to  the  patient.  If,  however,  it  is  shown  that 
surgeons  have  applied  a  different  system  of  treatment  and 
found  it  to  succeed  as  well  or  better  than  the  one  prescribed, 
it  is  not  negligence  to  resort  to  the  system  thus  practically 
tested.  But  before  the  new  practice  can  be  used  to  shield 
the  surgeon  from  the  charge  of  malpractice,  it  must  appear 
that  the  cases  in  which  it  was  tested  were  substantially  the 
same  as  those  treated  of  by  the  writer  or  those  treated  by 
practical  surgeons,  and  that  the  treatment  thus  resorted  to 
has  been  successful  in  so  many  instances  as  to  establish  satis- 
factorily the  propriety  and  safety  of  adopting  it.  The  ques- 
tion is,  as  a  general  rule,  exclusively  for  the  jury,  and  in  this 
case  it  was  peculiarly  so. 

If  in  case  of  dislocation  of  the  elbow-joint  it  is  enough  for 
the  physician  to  replace  the  bones,  and  to  put  the  arm  on  a 
pillow,  with  the  part  below  the  joint  at  a  right  angle  with 
that  above  it,  and  directing  the  application  of  cold  water,  it 


IN  DISLOCATIONS.  241 

would  seem  to  be  proper,  if  not  necessary,  that  the  attending 
surgeon  should  inform  the  patient,  or  those  having  care  of 
him  or  her,  of  the  necessity  of  maintaining  that  position  ; 
and  if  there  is  a  tendency  in  the  limb  to  become  straight,  or 
if,  in  consequence  of  the  severity  of  the  injury  to  the  liga- 
ments about  the  joint,  there  is  great  pain,  which  renders 
the  patient  nervous  and  restless,  thus  increasing  the  ten- 
dency to  reluxation,  or  to  straighten,  and  as  a  consequence  to 
stiffen  the  joint,  the  danger  should  be  disclosed,  to  the  end 
that  all  proper  precaution  may  be  taken  to  prevent  it.  It  is 
insisted  that  these  dangers  were  imminent,  and  yet  no  word 
was  given.  This  was,  in  my  judgment,  culpable  negligence ; 
much  of  the  suffering  the  plaintiff  has  undergone,  and  much 
of  the  loss  she  has  sustained,  might  have  been  prevented,  had 
the  defendant  done  what  it  was  clearly  liis  duty  to  do,  if  he 
knew  the  consequences  which  might  result  from  redislocation 
of  the  joint  or  straightening  the  arm.  It  would  seem  to  me 
that  a  sling  would  have  in  some  degree  mitigated,  if  not  al- 
together prevented,  the  misfortune  which  has  befallen  the 
plaintiff. 

Some  stress  is  laid  by  the  plaintiff's  counsel  upon  the 
abandonment  of  the  plaintiff,  by  the  defendant,  a  few  days 
after  setting  the  joint,  or  rather  upon  the  representations  as 
made  by  him  to  her  on  that  occasion.  I  agree  with  the  de- 
fendant's counsel  that  it  was  the  right  of  the  defendant  to 
give  up  the  care  of  the  limb  at  any  time,  especially  with  the 
plaintiff's  assent ;  but  if  the  defendant  insists  upon  that 
consent  as  a  shield  from  liability  for  any  negligence  of  which 
he  may  have  been  guilty,  or  for  any  malpractice  committed, 
it  was  competent  for  the  plaintiff  to  show  if  she  could,  that 
her  consent  was  obtained  by  representations  that  were  false. 
The  plaintiff  swears  that  the  defendant  represented  that  the 
dislocation  had  been  properly  reduced,  and  that  he  had  done 
for  her  all  it  was  necessary  to  do  in  order  to  give  her  a  sound 
arm.  These  representations,  she  insisted  on  the  trial,  were 
untrue,  and  that  she  released  him  from  further  attendance 
believing  them  to  be  true.     In  order  to  meet  any  defence 

16 


242  CIVIL   MALPRACTICE. 

resting  on  the  plaintiff's  consent  to  the  defendant's  dis- 
charge, it  was  not  necessary  to  allege  the  falsity  of  the  repre- 
sentations in  the  complaint.  But  if  the  plaintiff  intended  to 
recover  damages  resulting  from  the  omission  to  call  in  sur- 
gical aid,  because  she  relied  on  the  alleged  false  representa- 
tions, it  was  necessary  that  they  should  be  alleged  in  the 
complaint.  I  do  not  understand  that  the  plaintiff  claimed 
to  recover  any  such  damages,  and  hence  the  necessity  of  the 
averment  does  not  arise. 

The  next  exception  is  to  the  charge  of  the  judge,  that  it 
was  immaterial  whether  the  defendant  was  or  was  not  a 
skilful  surgeon.  It  would  be  error  to  instruct  a  jury,  in 
an  action  against  a  surgeon  for  malpractice,  that  it  was  not 
material  whether  the  defendant  in  the  action  was  or  was 
not  skilful  in  his  profession.  It  is  said  in  2  Espinasse's 
N.  P.  601,  if  a  person  undertakes  the  cure  of  any  wound, 
or  disease,  and  by  neglect  or  ignorance  the  party  is  not 
cured,  or  suffers  materially  in  his  health,  he  may  recover 
damages  in  this  action  ;  but  the  person  must  be  a  common 
surgeon,  or  one  who  makes  public  profession  of  such  business 
as  surgeon,  &c. :  for  otherwise  it  was  the  plaintiff's  own  fault 
to  trust  to  an  unskilful  person,  unless  such  person  expressly 
undertook  the  cure.  Being  liable  if  he  holds  himself  out  as 
a  surgeon,  as  well  for  want  of  skill  as  for  negligence,  the 
injured  party  may  bring  his  action  to  recover  for  damages 
resulting  from  both,  and  recover  on  proving  damages  re- 
sulting from  either.  Seare  v.  Prentice^  4  East,  348 ;  Slater 
V.  Baker,  2  Wils.  359 ;  1  Wait's  Pr.  336-390  ;  Bellinger 
V.  Craigue,  31  Barbour,  534.  In  this  case  the  plaintiff 
charged  want  of  skill,  as  well  as  negligence.  So  far,  then, 
as  the  pleading  could  make  want  of  skill  material,  it  was 
done.  Taking  the  whole  of  the  charge  relating  to  the  mate- 
riality of  the  question  of  the  defendant's  skill  together,  I  am 
satisfied  that  the  judge  did  not  intend  to  lay  down  to  the 
jury  the  proposition  so  broadly  stated  as  I  have  stated  it. 
The  judge  says  :  '  I  suppose  it  is  entirely  immaterial  to  the 
inquiry  before  you  whether  the  defendant,  at  the  time  he 


IN  DISLOCATIONS.  243 

undertook  the  reduction  of  this  dislocation,  was  or  was  not 
reputed  to  be,  or  was  or  was  not  a  skilful  surgeon.  The 
question  is,  did  he  bring  to  the  treatment  of  that  particular 
case  the  degree  of  skill  to  which  I  have  referred  ? '  The 
degree  of  skill  to  which  he  referred,  was  that  reasonable 
'  degree  of  skill  ordinarily  possessed  by  the  members  of  the 
profession  to  which  he  belongs,  —  the  average  skill  of  his 
profession.'  By  this  language  I  understand  the  judge  to 
mean,  that  if  the  surgeon  does  not  bring  to  the  treatment  of 
an  injury,  or  of  a  disease,  the  ordinary  amount  of  skill  pos- 
sessed by  those  in  the  same  profession,  it  is  immaterial  how 
high  his  standing  may  be.  If  he  has  the  skill  and  does  not 
apply  it,  he  is  guilt}'^  of  neglect.  If  he  does  not  have  it,  then 
he  is  liable  for  want  of  it.  Whether,  therefore,  a  surgeon 
possesses  ordinary  skill  may  be  material  in  an  action  for 
malpractice,  but  not  whether  he  possesses  a  higher  degree  of 
skill.  If  this  is  the  proper  construction  of  the  charge,  and  I 
am  of  the  opinion  that  it  is,  I  see  no  objection  to  it.  If  the 
plaintiff  had  sought  to  recover  on  the  ground  that  the  de- 
fendant did  not  possess  ordinary  skill,  the  instruction  was 
wrong.  But  I  do  not  understand  that  any  such  ground  was 
taken ;  the  liability  of  the  defendant  was  put  on  the  ground 
that  he  did  not  apply  that  measure  of  skill  in  the  treatment 
of  the  plaintiff.  It  seems  to  me  the  defendant  had  no  just 
ground  of  complaint  against  that  part  of  the  charge  under 
consideration,  if  it  is  to  receive  the  construction  I  have  given 
it.  If  either  party  could  justly  complain  of  it,  it  was  the 
plaintiff.  I  agree  with  the  learned  judge,  that  the  questions 
to  be  decided  were,  first,  whether  the  defendant  possessed 
the  ordinary  skill  of  persons  acting  as  surgeons ;  and  second, 
if  he  did,  whether  he  was  chargeable  with  negligence  in  not 
applying  it  in  his  treatment  of  the  plaintiff.  Whether  he 
possessed  greater  skill,  or  had  been  successful  in  tlie  treat- 
ment of  other  patients,  was  wholly  immaterial  in  this  case. 
The  inquiry  of  the  jury  was  brought  within  the  proper 
limits.  The  defendant's  counsel  excepted  to  the  instructions 
to  the  jury,  that  it  was  impossible  to  show  that  a  surgeon 


244  CIVIL  MALPRACTICE. 

possessed  the  required  skill  except  by  showing  what  skill  he 
applied  in  the  treatment  of  this  particular  case.  If  this  part 
of  the  charge  is  to  be  construed  by  itself,  without  reference 
to  other  parts  of  it,  I  think  the  proposition  cannot  be  sup- 
ported. That  a  physician  or  surgeon  possesses  skill,  may  be 
shown  by  those  of  the  same  profession,  who  can  speak  from 
personal  knowledge  of  his  practice.  When  the  point  in  issue 
is,  whether  skill  was  applied  in  a  given  case,  the  possession 
of  skill,  without  proof  that  it  was  applied,  would  be  no  de- 
fence in  a  case  of  malpractice.  But  there  may  be  cases  in 
which  such  proof  is  admissible.  Evidence  of  the  reputation 
and  standing  of  the  defendant  as  a  surgeon  was  received 
without  objection  in  Slater  v.  Baker,  2  Wils.  359.  When  it 
is  proved  that  the  surgeon  has  omitted  altogether  the  estab- 
lished mode  of  treatment,  and  has  adopted  one  that  has 
proved  to  be  injurious,  evidence  of  skill,  or  of  reputation  for 
skill,  is  wholly  immaterial,  except  to  show  (what  the  law 
presumes)  that  the  defendant  possesses  the  ordinary  degree 
of  skill  of  persons  engaged  in  the  same  profession.  In  such  a 
case  it  is  of  no  consequence  how  much  skill  he  may  have  ;  he 
has  demonstrated  a  want  of  it  in  the  treatment  of  the  partic- 
ular case.  In  such  cases  I  think  the  proposition  of  the  judge 
is  right.  The  failure  to  use  skill,  if  the  surgeon  has  it,  may 
be  negligence ;  but  when  the  treatment  adopted  is  not  in  ac- 
cordance with  established  practice,  but  is  positively  injuri- 
ous, the  case  is  not  one  of  negligence,  but  want  of  skill.  It 
is  said  in  Slater  v.  Baker,  supra,  that  it  is  ignorance  and 
unskilfulness  to  do  contrary  to  the  rule  of  the  profession. 
In  ascertaining  the  meaning  of  the  charge  now  under  con- 
sideration, the  whole  is  to  be  considered.  The  judge  had 
told  the  jury  that  the  surgeon  did  not  undertake  to  cure  the 
plaintiff,  but  only  to  bring  to  the  case  that  ordinary  and 
reasonable  degree  of  skill  possessed  by  the  average  of  the 
profession.  He  then  proceeded  to  say  that  it  had  been  said 
that  if  it  be  shown  that  the  surgeon  possesses  that  ordinary 
degree  of  skill,  and  that  in  the  particular  case  in  hand  he 
exercises  that  skill  with  ordinary  care  and  diligence,  he  then 


IN  DISLOCATIONS.  245 

discharges  his  whole  duty  ;  such  a  rule,  he  thought,  was  cal- 
culated to  mislead.  He  then  told  the  jury  he  supposed  it 
was  entirely  immaterial  to  the  inquiry  before  them  whether 
the  defendant,  at  the  time  he  undertook  the  reduction  of  the 
dislocation,  was  or  was  not  reputed  to  be,  or  was  or  was  not 
a  skilful  surgeon.  The  question  then  was,  did  he  bring  to 
the  treatment  of  that  particular  case  the  degree  of  skill  to 
which  he  had  referred  ?  This  part  of  the  charge  is  not  ex- 
cepted to.  The  learned  judge  then  added  the  remark  to 
•which  exception  is  taken,  and  says,  the  question  is,  what 
skill  the  defendant  applied  in  the  particular  case.  Now,  by 
this  charge,  I  understand  the  judge  to  say  to  the  jury,  the 
defendant  is  required  to  have  an  ordinary  degree  of  skill  — • 
whether  he  has  any  more  is  wholly  immaterial.  In  the  case 
then  in  hand,  the  question  for  the  jury  was,  whether  the 
defendant  applied  that  degree  of  skill ;  and  whether  he  ap- 
plied it  can  only  be  ascertained  by  proof  of  the  skill  actually 
employed.  If  such  is  a  reasonable  construction  of  the  charge, 
as  I  believe  it  to  be,  it  is  correct. 

The  next  exception  is  to  the  charge  that  if  the  defendant 
withdrew  from  the  case  while  the  plaintiff  labored  under  a 
mistaken  opinion  that  the  joint  had  been  properly  reset,  and 
was  in  a  way  to  recover  without  further  surgical  aid,  and 
that  mistaken  opinion  was  induced  by  his  representations  or 
his  conduct,  then  he  did  not  end  his  responsibility  for  the 
case  by  withdrawing  from  it.  The  instruction  does  not  as- 
sume that  the  defendant  had  discharged  his  entire  duty  up 
to  the  time  he  abandoned  the  case.  It  is  assumed  that  he 
had  induced  the  plaintiff  to  so  believe  he  had,  and  that  belief 
was  created  either  by  the  acts  or  declarations  of  the  defen- 
dant ;  and  if  it  was  so  induced,  his  responsibility  for  the 
treatment  of  the  case  had  not  ended.  If,  by  this  instruc- 
tion, the  learned  judge  intended  to  say  to  the  jury  that  the 
consent  of  the  plaintiff  that  the  defendant  might  abandon 
the  case  and  not  be  liable  for  any  damage  which  might  there- 
after happen  to  the  arm,  provided  he  had  truthfully  de- 
scribed its  condition,  I  assent  to  it.     That  he  so  intended,  I 


246  CIVIL   MALPRACTICE. 

think  is  shown  by  a  subsequent  clause  of  the  charge,  in  which 
he  instructed  the  jury  that  as  to  what  occurred  after  the 
plaintiff  consented  that  the  defendant  might  abandon  the 
case,  the  defendant  was  not  responsible.  I  have  already  ex- 
pressed the  opinion  that  the  consent  of  the  plaintiff,  if  ob- 
tained by  false  representations,  was  no  protection  to  the  de- 
fendant against  liability  for  damages  that  had  occurred  before 
the  consent  was  given.  I  am  at  a  loss  to  understand  what 
liability  the  learned  judge  intended  to  tell  the  jury  the  de- 
fendant was  subject  to,  if  he  misrepresented  the  condition 
of  the  arm,  and  thereby  obtained  the  plaintiff's  consent  that 
he  might  abandon  the  case.  If  he  was  to  be  responsible  for 
any  injury  thereafter  to  happen  by  reason  of  want  of  surgical 
care,  it  was  at  variance  with  a  subsequent  clause,  in  which 
he  told  them  that  the  defendant  was  not  liable  for  what  oc- 
curred after  that  time.  The  only  construction  I  can  put 
upon  it  is,  that  if  the  plaintiff's  consent  was  obtained  by 
fraud,  the  liability  of  the  defendant  for  damages  resulting 
from  want  of  care  or  skill,  prior  to  the  plaintiff"s  consent 
that  he  might  cease  to  treat  the  in j  luy ,  did  not  terminate ; 
and  thus  understood,  the  charge  was  right.  But  if  b}^  reason 
of  the  erroneous  advice  given  by  the  defendant  to  the  plain- 
tiff as  to  the  condition  of  her  arm,  she  omitted  to  call  in 
other  surgical  aid,  whereby  she  sustained  injury,  the  defen- 
dant would  be  liable,  but  not  in  this  action.  The  court  had 
nowhere  intimated  that  the  jury  might  allow  for  any  such 
injury.  The  charge  is  not  subject  to  the  criticism  made  by 
the  defendant's  counsel,  that  the  liability  of  the  defendant 
was  not  made  to  depend  on  the  truth  or  falsity  of  the  defen- 
dant's representations,  but  on  the  impressions  made  on  the 
plaintiff's  mind  by  his  representations  as  well  as  his  acts. 
It  is  impossible  to  misunderstand  the  meaning  of  the  judge. 
He  intended  to  say  that  if  the  defendant  had  by  his  acts  or 
language  induced  the  plaintiff  to  believe  that  her  elbow  had 
been  properly  set,  and  was  in  a  fair  way  to  be  cured,  and 
such  acts  and  representations  were  false  or  unfounded,  her 
consent  did   not    discharge  him.     That  the   representations 


IN  DISLOCATIONS.  247 

were  false  or  unfounded  the  jury  might  find  upon  the  evi- 
dence, and  that  finding  cannot  be  disturbed. 

The  next  exception  is  to  the  refusal  to  charge  that  the 
defendant  had  the  right  to  cease  to  attend  the  plaintiff,  after 
reasonable  notice.  The  court  had  charged  that  if  the  plain- 
tiff consented  to  the  defendant's  discharge,  after  notice  of  the 
actual  condition  of  the  arm,  he  was  discharged.  This  was 
all  the  court  was  called  on  to  say.  The  defendant  had  not 
assumed  to  discharge  himself  without  asking  the  plaintiff's 
consent,  and  a  charge  as  to  the  abstract  right  of  the  defend- 
ant was  not  called  for,  and  the  request  was,  therefore,  prop- 
erly refused.  If  there  could  be  any  difference  in  the  de- 
fendant's liability  when  discharged,  with  or  without  the 
plaintiff's  consent,  the  request  might  have  been  proper,  but 
he  would  be  liable  in  either  case  for  want  of  care  or  skill, 
unless  consent  should  operate  to  release  it. 

The  next  exception  is  to  the  refusal  to  charge  that,  if  the 
negligence  of  the  plaintiff  contributed  to  the  injury,  the  de- 
fendant was  not  responsible.  The  refusal  was  put  on  the 
ground  that  there  was  no  evidence  in  the  case  of  the  plain- 
tiff's negligence,  and  I  concur  with  the  learned  judge  in  the 
position.  If  there  was  any,  irt  was  the  result  of  ignorance  on 
the  part  of  the  plaintiff  as  to  how  the  limb  should  be  treated  ; 
that  ignorance  it  was  the  duty  of  the  defendant  to  remove  by 
giving  her  such  instructions  as  to  its  care,  as  would  enable 
her  not  only  to  prevent  injury,  but  to  treat  it  so  as  to  facili- 
tate cure. 

The  two  remaining  exceptions  ai-e  to  the  refusal  to  charge 
that,  if  the  plaintiff  discovered  anything  out  of  shape  or  out 
of  place,  before  and  after  the  defendant  ceased  to  have  charge 
of  the  arm,  it  was  negligence  in  the  plaintiff  to  omit  to  in- 
form the  defendant  in  the  one  case,  or  some  other  surgeon 
in  the  other,  of  the  defect.  The  only  evidence  on  which  to 
predicate  these  requests  is  that  of  the  plaintiff,  who  testifies 
that,  at  the  time  of  the  injury,  and  again  in  some  two  weeks 
afterwards,  she  discovered  a  protuberance  at  the  elbow. 
Whether  she  understood  that  this  indicated  any  defects  in 


248  CIVIL   MALPRACTICE. 

the  reduction  of  the  luxation  we  do  not  know ;  but  she  says 
that,  on  several  occasions,  before  as  well  as  after  the  defend- 
ant ceased  to  have  care  of  her  arm,  she  insisted  to  him  that 
the  joint  had  not  been  set.  He  repeatedly  assured  her  that 
it  had,  and  an  objection  now  comes  with  a  bad  grace  from 
him,  that  she  did  not  disclose  to  a  surgeon  of  some  twenty 
years'  practice  a  fact  that  should  have  been  discovered  by  a 
person  of  the  most  ordinary  observation. 

The  defendant's  counsel  objects  to  the  use  by  the  judge,  in 
his  charge,  of  the  remark,  that  a  surgeon  is  required  to  exer- 
cise the  '  average  skill '  of  his  profession,  and  insists  that  it 
was  calculated  to  mislead  the  jury.  The  true  standard  of 
qualification,  as  he  insists,  is  '  reasonable  and  ordinary  skill.' 
I  understand  the  charge  to  use  the  phrase  employed  as  equiv- 
alent to  the  one  employed  by  counsel.  In  another  part  of 
the  charge  the  judge  says  he  (the  surgeon)  contracts  that  he 
will  bring  to  the  case  that  ordinary  and  reasonable  degree  of 
skill  which  is  possessed  by  the  average  of  his  profession. 
Again  he  says,  that  he  undertakes  to  bring  to  the  case  the 
exercise  of  that  reasonable  degree  of  skill  ordinarily  possessed 
by  the  members  of  the  profession.  He  then  adds  the  expres- 
sion complained  of  by  the  defendant's  counsel :  '  I  think  it 
the  reasonable  rule  that  he  is  required  to  exercise  the  average 
skill  of  his  profession.'  It  seems  to  me  to  be  impossible  to 
misunderstand  this  part  of  the  charge.  The  judge  lays  down 
the  rule  as  it  is  given  by  writers  on  the  law,  and  by  the 
judges  in  their  instructions  to  juries,  and  a  change  of  phra- 
seology does  not  change  the  rule ;  at  all  events,  it  is  obvious 
that  the  judge,  in  the  last  sentence  cited,  did  not  intend  to 
modify  or  vary  the  rule  as  it  had  previously  been  laid  down 
by  him.  Much  was  said  on  the  argument,  as  to  the  right  of 
a  surgeon  to  exercise  his  own  judgment  as  to  the  mode  of 
treatment  he  will  adopt  in  the  case  of  a  wound,  or  of  a  dis- 
ease which  he  is  called  upon  to  treat ;  that  neither  the  rules 
prescribed  by  writers,  nor  those  acted  upon  by  other  phy- 
sicians or  surgeons,  can  apply  to  every  case  ;  and  hence  lati- 
tude must  be  allowed  for  the  application  of  remedies  which 


IN  DISLOCATIONS.  249 

the  attending  physician  or  surgeon  has  found  to  be  beneficial. 
If  this  is  not  allowed,  the  argument  is,  that  all  progress  in 
the  practice  of  surgery  or  physic  must  cease,  and  the  afflicted 
lose  altogether  the  benefits  of  experience  and  of  remedies 
that  science  furnishes  for  the  alleviation  of  human  suffering. 
It  must  be  conceded  that,  if  a  surgeon  is  bound,  at  the  j)eril 
of  being  liable  for  malpractice,  to  follow  the  modes  of  treat- 
ment which  writers  and  practitioners  have  prescribed,  the 
patient  may  lose  the  benefits  of  recent  improvements  in  the 
treatment  of  diseases,  or  discoveries  in  science,  by  which  new 
remedies  have  been  brought  into  use ;  but  this  danger  is 
more  apparent  than  real.  Some  standard,  by  which  to  de- 
termine the  propriety  of  treatment,  must  be  adopted  ;  other- 
wise experiment  will  take  the  place  of  skill,  and  the  reckless 
experimentalist  the  place  of  the  educated,  experienced  prac- 
titioner. If  the  case  is  a  new  one,  the  patient  must  trust  to 
the  skill  and  experience  of  the  surgeon  he  calls  ;  so  must  he, 
if  the  injury  or  the  disease  is  attended  with  injury  to  other 
parts,  or  other  diseases  have  developed  themselves  for  which 
there  are  established  modes  of  treatment.  But  when  the  case 
is  one  as  to  which  a  system  of  treatment  has  been  followed 
for  a  long  time,  there  should  be  no  departure  from  it,  unless 
the  surgeon  who  does  it  is  prepared  to  take  the  risk  of  estab- 
lishing, by  his  success,  the  propriety  and  safety  of  his  exper- 
iment. The  rule  protects  the  community  against  reckless 
experiments,  while  it  admits  the  adoption  of  new  remedies 
and  modes  of  treatment  only  when  their  benefits  have  been 
demonstrated,  or  where,  from  the  necessity  of  the  case,  the 
surgeon  or  physician  must  be  left  to  the  exercise  of  his  own 
skill  and  experience. 

The  judgment  is  rights  and  must  he  affirmed.  " 


250  civil  malpractice. 

Wengee,  v.  Calder.1 

(Supreme  Court  of  Illinois.) 

Opinion  by  Sheldon,  J.  "  Suit  for  malpractice  in  the 
treatment  of  a  dislocation  of  the  elbow.  The  following  in- 
structions were  given  for  plaintiff  :  — 

1.  '  The  rule  of  damages,  in  this  case,  if  you  find  for  the 
plaintiff,  is  the  pain  and  suffering  undergone  by  the  plaintiff, 
and  any  permanent  injury  to  the  arm  shown  by  the  evidence, 
and  consequent  pecuniary  loss,  for  life,  after  the  time  of  the 
plaintiff's  coming  of  age.'  2.  '  If  you  believe,  from  the  evi- 
dence, that  the  defendant,  as  surgeon,  treated  the  arm  of  the 
plaintiff,  and  failed  to  use  the  reasonable  care  and  skill  in  so 
treating  it,  and  if  you  believe,  from  the  evidence,  that  the 
defendant  was  wilfully  negligent  in  failing  to  use  reasonable 
care  and  skill  in  treating  the  arm,  then  you  may  find  for 
the  plaintiff  any  sum  you  deem  proper,  under  the  evidence, 
not  exceeding  ten  thousand  dollars.' 

The  second  of  these  instructions  was  deemed  irrelevant, 
and  so  erroneous,  because  there  was  no  evidence  of  wilful 
negligence. 

As  to  the  first,  the  court  say:  The  injury  which  the 
plaintiff  originally  received  to  his  elbow  was  not  produced 
by  any  agency  or  fault  of  the  defendant ;  and  there  is  no 
reason  why  he  should  be  held  to  pay  for  the  pain  and  suffer- 
ing caused  thereby.  If  there  were  any  additional  pain  and 
suffering  which  the  plaintiff  underwent  because  of  the  want 
of  reasonable  care  and  skill  in  the  treatment,  that  might  have 
been  considered  by  the  jury  in  assessing  damages  (this  might 
be  done),  but  nothing  more.  And  there  should  have  been 
the  same  limitation  in  the  respect  of  any  permanent  in- 
jury. " 

1  Legal  News,  vol.  viii.  220. 


IN  DISLOCATIONS.  251 

Smith  v.  Ikven". 

(Mercer  Circuit  Court,  Illinois,  1875.) 

History.  "  On  the  16th  of  October,  1866,  Dr.  Geo.  Irvin, 
a  respectable  physician  of  Aledo,  Mercer  County,  Illinois, 
was  called  to  see  Frank  Smith,  a  boy  eight  years  of  age. 
Dr.  Irvin  found  an  outer  luxation  of  the  right  knee,  the  outer 
condyle  of  femur  resting  upon  the  inner  articulating  surface 
of  tibia.  He  reduced  it.  Called  on  the  23d,  and  found  the 
knee  and  ankle  somewhat  swollen.  Could  not  find  any  other 
trouble  about  the  ankle.  Believed  it  to  be  sprained,  as  there 
was  neither  swelling  nor  pain  on  first  visit.  Called  again  on 
the  31st,  and  the  swelling  having  very  much  subsided,  dis- 
missed the  case. 

The  treatment  pursued  was  to  keep  the  knee  and  ankle 
bathed  with  cold  water  ;  foot  in  a  line  with  patella.  Six 
months  after,  boy  was  brought  by  his  father  to  Dr.  Irvin's 
office.  Boy  at  this  time  used  a  cane  to  assist  him  in  walk- 
ing. The  ankle  appeared  to  be  weak.  At  this  time  he 
could  stand  squarely  upon  his  foot,  but  when  he  walked  the 
toes  would  turn  inward.  The  father  wished  Dr.  W.  D. 
Craig  to  see  him  in  consultation,  the  result  of  which  was  to 
get  a  shoe,  stiffened  in  the  ankle,  made  of  leather  and  to  lace 
high.  The  shoe  was  procured,  worn  for  a  while,  and  then 
thrown  away. 

One  year  after,  Dr.  E.  L.  Marshall,  of  Keithsburg,  111., 
put  on  him  a  club-foot  shoe.  This  was  worn  about  one  year, 
and  then  thrown  away,  since  which  time  no  support  has  been 
used  on  the  limb.  The  case  is  now  one  of  talipes  varus.  The 
bo}^  is  now  in  his  eighteenth  year,  and  will  weigh  about  one 
hundred  and  sixty  pounds.  There  is  a  partial  dislocation  of 
the  head  of  the  astragalus  from  the  scaphoid  :  the  leg  much 
atrophied. 

Suit  was  brought  for  damages,  for  neglect  and  unskilful 
treatment  of  the  plaintiff  in  the  sum  of  $15,000. 

The  luxation  of  the  knee  was  denied,  in  the  declaration. 


252  CIVIL   MALPEACTICE. 

and  dislocation  of   the  astragalus  claimed  as  being  tlie  in- 

Plea.  Dislocation  of  the  knee,  with  associated  injury  to 
the  nerves  sujDplying  peroneus  longus,  and  brevis  muscles, 
causing  paralysis  of  these  muscles.  Contraction  of  antagonistic 
muscles  drew  toes  inward,  and  walking  without  any  support, 
for  eight  or  nine  years,  the  boy  being  bow-legged,  gradually 
brought  the  foot  to  its  present  condition. 

After  occupying  the  attention  of  the  court  nearly  two 
weeks,  it  was  given  to  the  jury,  which,  after  being  out  for 
forty-eight  hours,  returned  to  the  court  and  announced, 
through  their  foreman,  that  they  were  unable  to  agree,  and 
were  thereupon  discharged." 

A  second  trial  of  the  case,  December,  1875,  again  resulted 
in  a  disagreement  of  the  jury. 


m  AMPUTATIONS.  253 


CHAPTER  IX. 

ALLEGED  MALPEACTICE  IN  AMPUTATIONS. 

Young,  hy  next  friend  v.  Fullerton. 

(Fulton  Circuit  Court  (111.).     Change  of  venue  from  Mason,  1873.) 

History  and  abstract  of  evidence :  "  In  October,  1871, 
Frederick  Young,  aged  about  fourteen  years,  living  in  Ker- 
ton,  Illinois,  while  hunting,  accidentally  shot  himself  in  the 
right  fore-arm.  The  accident  occurred  about  four  o'clock  in 
the  afternoon,  and  a  neighbor  was  immediately  sent  to  inform 
Dr.  Fullerton,  of  Bath,  the  family  physician,  and  request  his 
attendance.  Accompanied  by  Dr.  Hodnell,  a  dentist,  Dr. 
Fullerton  went  to  Young's,  taking  no  instruments,  except  his 
small  pocket  case.  Dr.  Hodnell  proposed  to  go  and  get  in- 
struments, but  Dr.  Fullerton  said  he  did  not  think  they 
would  be  needed.  They  arrived  at  Young's  about  eight 
o'clock,  and  found  the  arm  completely  shattered  to  pieces  at 
a  point  about  midway  between  the  elbow  and  wrist,  —  the 
hand  only  hanging  by  ligaments.  The  boy  had  lost  so  much 
blood  that  he  was  greatly  exhausted.  He  was  placed  under 
the  influence  of  chloroform,  and  the  hand  and  jpart  of  the 
mangled  flesh  cut  away.  Dr.  Fullerton  then  called  for  a  saw 
to  saw  off  the  bone  above  the  wound.  An  old  rusty  hand- 
saw was  handed  him,  and  according  to  Dr.  Hodnell's  testi- 
mony and  Mr.  Young's,  the  defendant  made  an  effort  to  saw 
off  the  bone  with  that  coarse,  rustj'-  saw.  Dr.  Hodnell  pro- 
tested, and  told  him  that  was  horrible.  The  defendant  then 
desisted,  and  sent  Mr.  Young  to  Bath,  to  a  cabinet-maker,  to 
get  a  tenon  saw,  and  some  place  else,  in  Bath,  to  get  a  bottle 


254  CIVIL  MALPEACTICE. 

of  Tr.  Myrrh,.  About  eight  o'clock  A.  M.,  (the  next  morn- 
ing ?)  Young  returned  with  the  saw  ;  the  boy  was  again 
put  under  the  influence  of  chloroform,  and  the  large  bone  of 
the  arm  sawed  off,  the  muscles  and  skin  pulled  over  and 
fastened  with  straps  of  adhesive  plaster,  the  wound  bathed 
with  tincture  of  myrrh,  a  cloth,  wet  with  myrrh  and  sweet 
oil,  laid  over  it,  and  the  stump  tied  up.  The  small  bone  was 
not  cut,  no  stitches  were  put  in  the  muscles  and  skin.  The 
defendant  said  he  made  '  flaps '  by  the  method  known  as  the 
circular  operation,  using  a  portion  of  the  mangled  flesh  (after 
trimming  it  down).  Other  witnesses  testified  that  he  made 
no  flaps,  but  forced  the  muscles  over  the  bone  by  traction,  or 
by  pulling  them  down.  He  directed  the  wound  to  be  bathed 
in  tincture  of  myrrh.  He  frequently  visited  the  boy,  and 
dressed  the  wound,  and  told  the  family  it  was  '  doing  well.' 
The  boy,  however,  was  sick  for  some  time,  the  arm  sup- 
purated a  great  deal,  and  in  about  ten  days  after  the  opera- 
tion a  piece  of  the  small  bone  came  out  of  the  wound. 

A  short  time  after  the  arm  began  to  heal  somewhat,  but 
left  the  end  of  the  large  bone  exposed.  All  winter  the  arm 
was  very  troublesome,  and  towards  the  latter  part  of  Febru- 
ary, the  wound  still  being  painful,  the  defendant  was  called 
again,  .and  told  Mr.  Young  another  operation  would  have  to 
be  performed.  Young  consulted  another  physician,  who  ex- 
amined the  arm,  and  said  it  must  be  reamputated.  On  the 
10th  of  March,  Dr.  Deffenbacker,  of  Havana,  Dr.  Browning, 
and  Dr.  Fullerton  were  at  Young's,  and  Dr.  Deffenbacker 
performed  a  second  operation,  taking  the  arm  off  two  inches 
further  up.  He  testified  that  the  bone  then  protruded  an 
inch  or  more  beyond  the  flesh,  and  was  decayed  or  necrosed. 
Dr.  Browning  testified  to  the  same  effect.  The  wound,  after 
this  operation,  healed  in  about  ten  days. 

A  large  number  of  physicians  and  surgeons  were  on  the 
stand,  and  all  testified  that  the  leaving  of  any  mangled  flesh, 
under  the  circumstances,  the  continued  application  of  myrrh 
to  the  wound,  the  omission  to  make  flaps,  and  to  secure  them 
with  stitches,  and  the  failure  to  make  the  small  bone 
smooth,  was  bad  surgery,  and  ignorant  practice. 


IN  AMPUTATIONS.  255 

Dr.  Fullerton,  on  the  defence,  denied  attempting  to  saw 
the  bone  with  the  old  handsaw,  but  said  in  a  joking  man- 
ner he  made  two  or  three  passes  with  it,  but  did  not  touch 
the  bone.  That  he  made  flaps,  and  that  the  adhesiye  plaster 
was  sufficient  to  hold  them  in  place;  that  the  bone  never 
became  exposed,  that  he  tied  up  the  artery  with  floss,  and 
that  the  reason  the  arm  failed  to  heal  was  because  the  boy 
fell  and  hurt  it ;  that  tincture  of  myrrh  was  a  recognized 
remedy  in  cases  of  amputation,  where  there  was  mangled 
flesh ;  that  he  charged  Young  fifty  dollars  for  the  operation, 
and  the  usual  fees  for  subsequent  visits,  and  that  the  whole 
treatment  was  good  and  skilful  on  his  part.  He  also  testi- 
fied that  he  had  attended  McDowell's  College,  in  St.  Louis, 
one  term,  and  studied  several  months  with  Dr.  McMurtry  of 
Rushville.  He  had  practised  since  1851,  and  had  assisted 
at  one  or  two  dissections. 

In  rebuttal.  Young  testified  that  the  defendant  tied  up  the 
artery  with  patent  thread  obtained  from  Mrs.  Young.  Hod- 
nell,  who  administered  the  chloroform,  heard  the  defendant 
ask  for  thread.  The  latter  saw  no  flaps  made,  nor  did  he  see 
the  small  bone.  The  defendant  said  he  ought  to  have  a  pair 
of  bone  forceps. 

The  case  was  argued  at  length.  The  court  instructed  the 
jury,  among  other  points,  that  the  defendant  could  not  be 
held  responsible  for  the  loss  of  the  arm. 

The  jury,  after  being  out  half  an  hour,  returned  a  verdict 
for  the  plaintiff,  assessing  the  damages  at  $1,000." 

The  surgeon's  duty  in  such  a  case  was,  first  to  suppress 
any  hemorrhage  that  might  have  been  present.  This  being 
accomplished,  he  should  have  sent  for  the  proper  instruments, 
and  these  instruments  need  not  have  been  those  expressly 
prepared  for  amputating  limbs.  Adler  v.  Bucldey^  1  Swan 
(Tenn.)  R.  69.  The  instruments  carried  in  an  ordinary 
pocket  case,  although  not  the  best,  will  answer  excellently 
for  making  the  flaps,  in  an  amputation  of  the  arm,  whether 
it  be  by  the  circular  method,  or  otherwise  ;  a  sharp,  keen 
butcher  knife  would  perhaps  answer  better,  and  would  very 


256  CIVIL   MALPRACTICE. 

properly  be  used,  if  the  occasion  required.  For  section  of 
the  bones  a  tenon  saw,  if  in  good  condition,  would  be  a  very 
proper  instrument ;  so  also  would  a  handsaw,  but  not  such 
a  one  as  appeared  in  evidence,  unless  no  other  instrument 
could  be  procured  within  twenty-four  hours,  which  evidently 
was  not  the  case  in  this  instance.  A  glance  at  such  an 
instrument  should  have  satisfied  the  surgeon  of  its  unfitness. 

Adlee  v.  Buckley.! 

"  This  was  an  action  of  assumpsit  on  a  surgeon's  bill. 
The  facts  sufficiently  appear  from  the  decision. 

ToTTEN,  J.  It  appears  that  a  son  of  Thomas  McClain, 
whose  administrator  is  the  plaintiff  in  error,  fractured  his 
arm,  and  amputation  became  necessarj^.  The  surgical  in- 
struments employed  on  the  occasion  were  '  a  large  butcher- 
knife,'  of  a  very  sharp  edge,  and  a  '  carpenter's  sash-saw,' 
the  teeth  of  which  were  as  sharp  and  fine  as  those  of  an 
amputating  saw.  The  operation  appears  to  have  been  well 
performed,  and  the  patient,  under  a  proper  treatment,  soon 
recovered. 

The  court  charged  the  jury  to  the  effect  that,  if  the  opera- 
tion was  of  service  to  the  patient,  and  he  did  well  and  re- 
covered, the  surgeon  was  entitled  to  compensation,  though 
it  was  not  performed  with  the  highest  degree  of  skill,  or 
might  have  been  performed  more  skilfully  by  others. 

We  are  not  prepared  to  say  that  this  charge  is  erroneous. 
It  is  certain  that  the  highest  degree  of  skill  is  not  necessary. 
The  surgeon  undertakes  for  a  due  and  proper  degree  of  skill 
and  diligence  in  his  profession,  and  for  the  employment  of 
these  he  is  entitled  to  a  reasonable  compensation.  His  right 
to  recover  does  not  depend  upon  the  fortune  of  the  case, 
whether  it  be  good  or  bad,  but  upon  the  skill,  diligence, 
and  attention  bestowed.  On  the  contrary,  if  the  patient  suf- 
fer injury  by  reason  of  the  want  of  skill  and  diligence  in 
the  operation  or  treatment,  or  from  such  cause  derives  no 
1  1  Swan  (Tenn.)  R.  69. 


IN   AMPUTATIONS.  257 

benefit  therefrom,  in  either  case,  the  surgeon  is  not  entitled 
to  any  compensation,  but  is  liable  in  damages  for  the  mal- 
treatment and  the  negligence.  The  same  may  be  said  of 
other  professions  and  vocations  in  which  skill  and  diligence 
are  required.  Seare  v.  Prentice,  8  East,  350 ;  Duncan  v. 
Blundell,  3  Starkie,  6  ;  2  Wilson,  359 ;  Chitty  on  Contracts, 
165  ;  Com.  on  Con.  246. 

We  think  that  the  charge  of  the  judge  is,  in  substance, 
conformable  to  the  rules  as  we  have  stated  it.  For  he  says  : 
'  If  the  operation  was  so  unskilfully  performed  as  to  be  of 
no  service  to  the  patient,  the  surgeon  would  not  have  a  right 
to  recover.'  It  certainly  required  some  degree  of  skill  in 
anatomy  and  surgery  to  perform  an  operation  of  the  kind, 
and  the  success  that  attended  it,  though  not  conclusive,  is  a 
circumstance  from  which  skill  may  be  inferred.  The  instru- 
ments employed,  drawn  from  other  vocations,  were  certainly 
unusual  and  extraordinary  for  such  purpose.  But  we  are 
not  to  infer,  from  this  circumstance  alone,  that  the?  surgeon 
had  not  sufficient  art  and  skill  in  the  use  of  them.  Besides, 
it  is  possible  that  the  delay  necessary  to  procure  proper  in- 
struments might  have  been  fatal  to  the  patient. 

Judgment  affirmed^ 

HOWAED   V.    GrOVEE.1 

"  Wells,  J.  This  case  was  tried  at  the  November  term,. 
1847,  and  a  verdict  was  rendered  for  the  plaintiff  for  $2,025. 
The  defendant  was  charged  with  malpractice,  as  a  surgeon.. 
And  he  moves  for  a  new  trial  because  of  the  discovery  of. 
new  evidence,  and  of  excessive  damages. 

The  gentlemen,  by  whose  testimony  the  alleged  newly 
discovered  facts  can  be  shown,  all  resided  in  Portland,  where 
the  trial  was  had.  No  measures  were  taken  to  procure  their 
attendance.  By  the  use  of  ordinary  diligence  the  defendant 
could  have  ascertained  the  facts,  to  which  they  were  able 
to  testify.     If  his  knowledge  of  surgery  was  less  extensive 

1  28  Maine,  97. 
17 


258  CIVIL   MALPEACTICE. 

than  theirs,  by  inquiry  of  them  the  information  which  they 
possessed  could  have  been  obtained.  If  any  witness  had 
stated  that  the  periosteum  had  not  the  power  of  reproduction, 
although  no  such  evidence  appears  in  the  abstract  furnished 
us,  information  on  this  subject  could  have  been  presented  by 
consulting  works  on  surgery,  or  the  gentlemen  by  whom  it 
now  appears  such  an  error  could  be  corrected.  Parties  are 
expected  to  exercise  due  diligence  in  preparing  their  causes, 
and  in  producing  testimony,  and  the  omission  to  do  so  does 
not  lay  the  foundation  for  a  new  trial. 

There  is  nothing  in  this  part  of  the  case  which  would 
authorize  us  in  disturbing  the  verdict.  Are  the  damages 
excessive  to  such  a  degree  as  to  require  the  interference  of 
the  court  ?  It  is  always  a  delicate  undertaking  to  set  aside 
a  verdict  on  account  of  excess  of  damages,  especially  in  cases 
where  the  rviles  by  which  they  are  to  be  measured  are  vague 
and  uncertain.  The  power  to  do  it  is  recognized  in  many 
cases,  to'  some  of  which  we  refer.  Chambers  v.  Caulfield,  6 
East,  245 ;  Coffiti  v.  Coffin,  4  Mass.  1 ;  Bodwell  v.  Osgood, 
3  Pick.  379 ;  Worster  v.  The  Canal  Bridge,  16  Pick.  641  ; 
Blunt  V.  Little,  3  Mason,  102  (which  was  an  action  for  a 
malicious  prosecution,  the  verdict,  being  for  $2,000  dam- 
ages, was  directed  to  be  set  aside,  unless  the  plaintiff  should 
remit  1500  of  his  damages)  ;  Wiggin  v.  Coffin,  3  Story's  R. 
1  (which  was  also  an  action  for  a  malicious  prosecution). 
In  the  case  of  Jacobs  v.  Bangor,  16  Maine,  187,  it  is  said, 
that  where  there  is  no  certain  measure  of  damages,  the  ver- 
dict of  a  jury  is  not  to  be  set  aside  for  excessive  damages, 
unless  there  is  reason  to  believe  that  they  '  were  actuated  by 
passion,  or  by  some  undue  influence,  perverting  their  judg- 
ment.' It  is  unnecessary  to  refer  to  that  class  of  cases  where 
verdicts  in  relation  to  property,  and  injuries  to  it,  have  been 
set  aside,  and  new  trials  granted.  Honest  and  well-meaning 
men  are  liable  to  be  led  astray,  by  strong  feelings  of  sym- 
pathy, arising  from  a  narrative  of  painful  and  protracted 
sufferings,  and  while  thus  excited,  often  inflict  upon  the 
author  of  them  a  severer  punishment  than  he  merits.     It  is 


IN  AMPUTATIONS.  259 

not  alleged  against  the  defendant  that  he  was  ignorant  of  the 
duties  of  his  profession,  or  that  he  wilfully  and  intentionally 
departed  from   them.     It  is  true  that  his  conduct  was  not 
guided  with  sufficient  deliberation,  and  he  relied  with  a  con- 
fidence too  strong  upon  his  own   judgment.     The  plaintiff 
had    been  lame  for  several  years ;    his  thigh-bone  was  dis- 
eased.    It  is  not  denied   that   in  1843  an  amputation  was 
necessary,  to  arrest  the  progress  of   the  disease.     In  that 
year  the  defendant  performed  two  operations  upon  the  plain- 
tiff's thigh,  by  amputation.    The  first  was  unobjectionable  as 
to  the  place  of  amputation,  but  the  bone  was  left  protruded 
too  far  from  the  muscular  parts.     The  ground  of  complaint 
is  principally  for  the  second,  —  that  there  was  an  error  in  not 
cutting  off  the  limb  nearer  to  the  body,  and  want  of  care 
and  skill  in  the  mode  of  execution.     But  it  is  not  shown  that 
the  plaintiff  sustained  any  material  injury  from  the  mere 
mode  of  execution,  although  it  did  not  accord  with  the  most 
correct   and   careful  practice.     But   as  soon  as  the  second 
amputation  took  place,  it  was  apparent  that  the  bone  was 
infected  above  the  place  of  amputation.     The  plaintiff  could 
not  then  bear  another  operation.     The  caries  continued  to 
increase  in  virulence  until  the  whole  of  the  thigh-bone  was 
removed  from  its  socket  by  another  surgeon.     The  alleged 
fault  of  the  defendant  consisted  in  an  error  of  judgment,  in 
not  removing  more  of  the  diseased  limb.     It  is  by  no  means 
certain  that  the  removal  of  a  larger  portion  would  have  been 
effectual.     When  the  first  operation  took  place,  the  remain- 
ing bone  appeared  to  be  perfectly  sound,  but  in  a  short  time 
the  disease   manifested  itself  in  such  a  fearful  manner  as  to 
require  a  second   amputation.     It   seems,  therefore,  highly 
probable  that  the  whole  bone  was  diseased,  and  that  nothing 
short  of  its  entire  removal  would  have  saved  the   life  of  the 
plaintiff.     If  such  were  the  fact,  it  was  of  little  importance 
at  what  precise   part   of   the   limb,  below  the  hip-joint,  the 
operation  was   performed.     Yet  damages  against  him  have 
been  rendered,  not  because  he  failed  to  remove  the  whole 
limb,  but  that  he  should  have  removed  a  few  inches  of  it. 


260  CIVIL   MALPEACTICE. 

It  was  the  inevitable  fate  of  the  plaintiff  to  be  a  cripple  for 
life,  without  any  agency  of  the  defendant.  The  want  of 
judgment  of  the  latter  may  have  protracted  his  suffering, 
and  caused  an  increase  of  expense  and  loss  of  time. 

The  defendant  is  not  liable  for  a  want  of  the  highest 
degree  of  skill,  but  for  ordinary  skill.  Seare  v.  Prentice^  8 
East,  848  ;  Chitty  on  Con.  165.  And  of  course  only  for  the 
want  of  ordinary  care  and  ordinary  judgment.  The  practice 
of  surgery  is  indispensable  to  the  community,  and  while 
damages  should  be  paid  for  negligence  and  carelessness,  sur- 
geons should  not  be  deterred  from  the  pursuit  of  their  pro- 
fession by  intemperate  and  extravagant  verdicts.  The  com- 
pensation to  surgeons  in  the  country  is  smaE,  in  comparison 
with  what  is  paid  in  cities  for  similar  services,  and  an  error 
of  judgment  is  visited  with  a  severer  pelialty,  which  takes 
from  one  a  larger  share  of  the  surplus  earnings  of  life. 

We  are  constrained  to  believe  that  the  jury  must  have 
been  actuated  '  by  some  undue  influence,'  and  that  justice 
requires  a  reduction  of  the  verdict.  But  we  have  so  much 
reluctance  to  interfere  with  it  that  we  will  allow  it  to  remain 
if  the  plaintiff  will  remit  8500  of  it.  If  this  is  not  d.one  the 
verdict  wiU  be  set  aside,  and  a  new  trial  granted." 


IN  OPHTHALMIC  CASES.  261 


CHAPTER   X. 

ALLEGED  MALPRACTICE  IN  OPHTHALMIC   CASES. 

McKehob  V.  Hall. 

(District  Court,  Philadelphia,  January  Term,  1870.) 

Ad  damnum,  $10,000.  Trial  by  jury.  Steoud,  J. 
Verdict  for  plaintiff  in  the  sum  of  $800.  Verdict  set  aside 
by  the  court,  there  being  no  evidence  to  sustain  it. 

Through  kindness  of  Dr.  Hall  I  am  able  to  present  here- 
with the  history  and  abstract  of  evidence  :  — 

"  This  action  was  brought  to  recover  damages  for  loss  of 
an  eye,  through  the  alleged  want  of  skill  and  care  of  defend- 
ant, a  surgeon  of  Wills'  Hospital,  in  operating  upon  the  eye. 
In  opening  the  case,  the  want  of  care  and  skill  was  alleged 
to  have  been  in  the  performance  of  the  operation;  that 
the  knife  slipped,  or  cut  deeper  than  intended ;  a  portion 
of  the  humors  of  the  eye  escaped,  and  sight  was  destroyed. 
There  was  not  a  particle  of  evidence  as  to  this,  and  the 
plaintiff  finally  rested  on  the  ground  that  the  disease  was  one 
which  ought  not  to  have  been  operated  for.  That  it  was 
leucoma,  and  not  staphyloma,  for  which  the  operation  was, 
and  in  which  case  it  would  have  been  entirely  proper. 

'  Leucoma  is  a  dense  white  opacity  of  the  cornea,  caused 
by  the  loss  or  destruction  of  part  of  its  substance,  the  gap 
thus  made  being  replaced  by  cicatrix  tissue,  which  is  opaque 
and  white,  instead  of  being  transparent  and  colorless.  It  is 
often  the  result  of  an  injury,  but  more  frequently  it  is  occa- 
sioned by  inflammation  and  deep  ulceration  induced  by  other 


262  CIVIL  MALPEACTICE. 

causes.  It  is  irremediable  ;  no  medicinal  agent  will  trans- 
form the  opaque  into  transparent  tissue.'  Lawson  on  the 
Injuries  to  the  Eye,  p.  78. 

'  Staphyloma  of  the  cornea  is  a  projecting  forward,  or  bulg- 
ing out,  of  the  whole  or  part  of  the  cornea,  or  of  the  new 
tissue  which  supplies  its  place,  when  a  part  or  the  whole  of 
it  has  been  destroyed  by  injury  or  disease.'  '  When  a  por- 
tion of  the  cornea  has  been  destroyed  by  sloughing  or  ulcer- 
ation, its  place  is  made  good  by  cicatricial  tissue,  which  is 
more  or  less  white  and  opaque,  and,  in  many  cases,  incapa- 
ble of  resisting  the  normal  outward  pressure  of  the  parts 
within  the  eye  ;  slowly  yielding,  it  bulges  and  forms  an  un- 
sightly prominence  on  the  cornea.'  lb.  p.  91.  See,  also, 
Traitd  Pratique  des  Maladies  des  Yeux,  par  Wecher,  p. 
341. 

Upon  the  part  of  the  plaintiff  the  witnesses  were  the 
plaintiff  herself,  her  uncle  and  aunt,  and  a  Mrs.  Redman. 
These  all  testified  to  a  disease  of  this  eye  that  had  lasted 
three  years ;  was  described  as  a  speck,  fog,  and  scum  over 
the  sight  ;  that  the  sight  was  so  impaired  that,  as  plaintiff 
said,  she  could  see,  except  to  read  and  write;  Mrs.  Red- 
man said  the  spot,  scum,  or  fog,  of  a  black  and  white  color, 
could  be  seen  as  far  off  as  from  where  witness  stood,  in 
the  middle  of  the  court,  to  the  bench  ;  was  thought  to  be 
getting  smaller  from  use  of  a  wash  given  her  by  Dr.  Seeds, 
of  Wilmington  ;  that  the  right  e^^e  had  begun  to  be  sore, 
and  that  Dr.  Hall  had  promised  plaintiff  to  make  the  left 
eye  well. 

The  defendant's  witnesses  were  Drs.  Levis,  Hall,  Morton, 
Paul,  Professor  Gross,  and  the  male  and  female  nurses  at 
the  hospital.  Drs.  Hall  and  Paul,  and  the  male  and  female 
nurses,  testified  the  disease  was  staphyloma ;  the  others  as 
to  the  nature  of  the  disease  and  the  necessity  for  the  opera- 
tion ;  and  Drs.  Hall  and  Paul,  and  the  nurses,  that  the 
patient  knew  the  operation  was  not  performed  to  give  sight 
to  the  eye,  but  to  benefit  the  other  eye,  and  enable  her  to 
wear  a  glass  eye.     The  patient  received  treatment  for  the 


m  OPHTHALMIC  CASES.  263 

other  eye  from  the  hospital,  at  sundry  times,  for  seven 
months  after  the  operation,  and  no  complaint  was  ever  made 
about  this  operation. 

ABSTRACT   OF   EVIDENCE.  —  FOR   PLAINTIFF. 

Josephine  Kehoe^  sworn :  Am  the  plaintiff.  Lived  in 
Philadelphia  May,  1868,  with  Mrs.  Redman.  Had  trouble 
then  with  my  right  eye.  The  left  eye  was  cloudy,  a  little 
speck  on  the  eye.  It  had  been  treated  by  Dr.  Seeds.  He 
said  he  would  make  it  a  well  eye  if  I  would  only  attend  to 
it.  He  gave  me  a  wash  for  it.  The  effect  was  that  the  eye 
had  improved,  and  the  speck  was  gathering  up  to  fall  off. 
Dr.  Seeds  had  treated  me  for  six  months  before  I  saw  Dr. 
Hall.  My  vision  was  impaired,  —  so  impaired  that  I  could 
see  to  do  anything  but  read  and  write.  When  I  saw  Dr. 
Hall  I  could  see.  The  woman  I  boarded  with  was  going  out 
to  Wills'  HosjDital.  I  went  for  weakness  in  the  right  eye. 
They  gave  a  wash  for  that  eye,  and  Dr.  Hall  told  me  if  I 
could  come  there  he  would  take  me  in  and  have  the  eye  well 
in  ten  days.  I  told  him  I  would  leave  it  till  I  saw  Dr. 
Seeds,  but  he  said  he  could  cure  me.  He  told  me  he  would 
take  me  in  the  hospital  and  operate  on  it,  and  have  it  well 
in  ten  days.  I  went  at  four  o'clock  that  day.  He  was  not 
there.  I  went  the  next  day.  ,  He  told  me  he  could  not  take 
me  in  that  day,  as  the  day  for  taking  in  was  over.  I  went 
on  Saturday.  He  told  me  to  come  on  Tuesday  at  four 
o'clock.  That  day  he  took  me  in  the  hospital.  He  said 
nothing,  only  looked  at  my  eye.  There  I  remained  till 
Thursday,  when  he  operated.  I  was  taken  in  a  room  there 
which  had  a  great  many  doctors  in  it.  I  don't  know  them. 
He  told  me  to  lie  down  on  the  table.  He  gave  me  ether, 
and  then  I  recollect  nothing  more.  No  one  spoke,  they  were 
all  standing  around  the  table  when  I  revived.  I  was  carried 
up.  My  eye  was  bandaged.  The  house  doctor  said  my  eye 
would  never  trouble  me  again.  The  next  day  Dr.  Hall 
asked  me  if  I  had  any  pain.  He  came  to  see  me  every  day 
I  was  there.     I  left,  under  his  directions,  the  eye  in  the 


264  CIVIL  MALPRACTICE. 

condition  it  now  is  in.  He  said,  before  he  operated,  it  would 
be  well  in  ten  days.  I  understood  that  he  would  make  it 
a  well  eye.  Did  not  think  he  would  cut  it  out.  He  asked 
me  if  I  could  see  and  I  told  him  yes.  I  told  him  Dr.  Seeds 
had  treated  me  for  that  eye.  I  told  Dr.  Hall  what  Dr. 
Seeds  had  told  me,  that  the  eye  could  be  made  well.  The 
speck  did  not  protrude  out  any  more  than  the  other  eye. 
The  spot  was  on  the  corner  of  the  sight.  The  speck  was 
only  a  small  one.  It  had  been  in  that  condition  for  some 
time. 

Cross-examined.  I  am  twenty-one.  It  was  three  years 
before  I  went  to  Dr.  Hall  that  I  first  found  I  had  a  trouble 
with  my  left  eye.  The  nature  of  the  trouble  was  a  dimness 
of  the  sight.  Not  very  long  before  I  went  to  Dr.  Hall  I 
found  my  sight  affected.  I  found  it  a  little  sore  from  a  cold. 
Dr.  Seeds  treated  me  for  the  left  eye.  I  did  not  get,  at  first, 
from  Wills'  Hospital  any  wash  for  the  left  eye.  I  went  there 
to  get  a  wash  for  the  right  eye.  I  never  closed  the  right  eye 
to  test  the  amount  of  sight  I  had  in  the  left  eye.  Dr.  Hall 
did  say  that  he  could  make  a  well  eye  of  the  left  eye.  Mrs. 
Creary  was  the  nurse,  and  nursed  me.  I  never  had  a  con- 
versation with  the  nurse  about  the  eye  improving  my  appear- 
ance,, and  getting  a  glass  eye.  I  never  had  a  conversation 
with  Mr.  Smith,  the  male  nurse,  about  my  eye.  I  never 
had  any  conversation  with  Dr.  Paul,  except  that  he  told  me 
the  eye  would  not  trouble  me,  and  to  take  care  when  I  left 
that  I  did  not  take  cold.  The  speck  on  my  eye  was  about 
the  size  of  the  head  of  a  pin.  I  was  there  ten  days  the  time 
I  was  operated  on.  About  three  weeks  after  I  left,  I  went 
back  to  get  a  wash  for  my  other  eye.  I  went  back  several 
times  to  have  the  other  eye  treated  during  that  summer  and 
fall.  In  all  these  times  I  never  complained  to  any  one  of 
anything  that  had  been  done  to  my  left  eye. 

Reexamined.  I  went  back  to  have  the  right  eye  attended 
to. 

John  Wall,  sworn  :  Plaintiff  is  my  wife's  niece.  I  recol- 
lect her  coming  from  Wilmington  to  Philadelphia  in  1868. 


IN  OPHTHALMIC  CASES.  265 

There  was  something  amiss  in  her  left  eye.  It  looked  like 
a  fog.  There  was  a  speck  over  the  sight  of  the  eye.  I  only 
saw  it  at  Wilmington.  Her  eye  appeared  to  be  getting 
smaller  from  the  stuff  Dr.  Seeds  gave  her.  The  eye  was 
getting  smaller.  The  speck  was  reducing  down  off  the  eye. 
Dr.  Seeds  said  the  disease  was  leucoma.  You  could  see  the 
eye  was  something  larger  than  the  other  eye. 

Cross-examined.  She  had  the  speck  on  the  eye  during  the 
three  years  I  knew  her.  I  never  carefully  examined  it.  The 
other  eye  had  not  begun  to  be  sore  when  she  left  Wilming- 
ton. I  would  notice  the  speck  if  she  stood  as  far  off  as  that 
railing.  I  don't  know  when  this  speck  came  on.  I  only 
saw  her  once  after  she  came  here.  She  had  a  doctor  to  at- 
tend her. 

Reexamined.  I  did  not  notice  any  trouble  in  the  right 
eye. 

Anna  Wall,  sworn :  Plaintiff  is  my  niece.  I  knew  Dr. 
Seeds  to  attend  her  at  my  house.  There  was  a  kind  of 
scum  on  her  eye  with  a  little  speck.  It  did  not  appear  to  be 
very  much.  It  did  not  protrude,  and  was  no  trouble  more 
than  the  other  eye.  She  said  she  could  see  by  the  side  of 
the  scum.  Dr.  Seeds'  wash  made  it  lower  down,  and  made 
it  kind  of  flat.  The  right  eye  had  nothing  the  matter  with 
it. 

Cross-examined.  It  was  about  three  years  the  scum  began 
on  her  eye.  I  do  not  know  of  any  cause  for  it.  I  recollect 
it  when  it  first  appeared.  It  was  partly  black,  a  little  white. 
That  was  when  it  first  came.  It  covered  a  little  over  the 
white  of  the  eye,  and  a  little  over  the  sight.  The  wash  was 
carrying  it  off  of  the  eye.  One  side  of  the  speck  was  black, 
and  a  little  white.  I  cannot  say  how  large  it  was  ;  you 
could  not  see  it  very  far  off. 

Reexamined.  It  partly  covered  the  white  of  the  eye. 
There  was  no  trouble  in  raising  the  lid  or  shutting  it. 

Mrs.  Redman,  sworn  :  I  recollect  this  girl  in  May,  1868, 
when  she  went  to  the  asylum.  It  looked  like  a  scum  on  the 
eye  —  on  the  side  of  the  eye.     It  did  not  seem  so  much  like 


266  CIVIL  MALPEACTICE. 

a  pearl  on  the  eye.  It  was  larger  tlian  the  head  of  a  pin. 
You  could  see  it  at  a  distance. 

Question  by  the  judge:  You  could  see  it  as  far  as  I  am 
from  you  ? 

Ans.  :  You  could  see  there  was  a  scum  on  the  eye  as  far  as 
that  railing.  Any  how,  I  don't  know  if  the  speck  was  large 
enough  to  prevent  the  lid  falling.  It  was  dark,  cloudy-look- 
ing, and  on  one  side  of  the  eye.  I  don't  think  it  was  directly 
in  the  centre  of  the  eye.  I  have  heard  her  say  that  she  could 
see  the  light  of  a  lamp  when  it  was  lit. 

Setli  Pancoast^  M.  D.,  affirmed :  Am  a  phj^sician.  Gradu- 
ated in  1851-2,  at  (Philadelphia  ?)  University.  Been  prac- 
tising medicine  ever  since,  except  when  I  had  oil  on  the 
brain. 

Mr.  Pancoast  objected  to  his  giving  his  opinion  as  an  ex- 
pert upon  the  testimony  of  the  plaintiff  alone.  Objection 
sustained. 

FOE.  DEFENDANT. 

Mr.  Sannis,  sworn  :  I  am  one  of  the  board  of  managers 
of  Wills'  Hospital. 

Offered  to  prove  the  regulations  of  the  hospital  and  ad- 
mission of  plaintiff.  Objected  to,  and  withdrawn  for  the 
present. 

Dr.  R.  J.  Levis,  sworn  :  Am  a  ph3'^sician,  and  have  given 
my  particular  attention  to  diseases  of  the  eye.  Staphyloma 
is  white,  dense,  totally  opaque ;  will  not  transmit  light  for 
purposes  of  vision.  A  perception  of  light  only  is  recognized. 
Leucoma  is  a  cicatricial  formation  over  cornea,  never  cur- 
able. Staphyloma  is  never  amenable  to  treatment.  The 
disfiguration  is  only  got  rid  of  by  excision  ;  medical  science 
does  not  know  of  any  remedy  that  will  restore  transparency 
to  the  eye  diseased  by  either  staphyloma  or  leucoma.  I 
would  cut  away  the  diseased  part  to  get  rid  of  iniiamraation 
of  the  other  eye.  Sympathetic  inflammation  of  the  other 
eye  is  very  common. 

Cross-examined.     Leucoma  is  a  change  in  the  structure  of 


IN  OPHTHALMIC  CASES.  267 

the  cornea.  This  stump  (examining  plaintiff's  eye)  is  a  good 
stump  for  an  artificial  eye,  and  shows  a  very  favorable  result 
from  the  operation. 

Br.  A.  I).  Hall  (defendant),  sworn  :  Am  a  practising  phy- 
sician. Graduated  at  Jefferson,  1854.  Have,  without  inter- 
ruption, practised  ever  since.  Have  been  surgeon  of  Wills' 
Hospital.  Was  resident  surgeon  Pennsylvania  Hospital,  1856, 
and  of  Episcopal  Hospital.  Have  made  diseases  of  the  eye 
special  study  as  surgeon  of  these  hospitals.  Have  had  very 
large  experience.  Have  had  a  large  experience  in  operations 
on  the  eye.  I  suppose  in  Wills'  Hospital  have,  performed 
180  to  200  operations  on  the  eye.  I  attend  there  once  every 
day  for  three  months  in  each  year.  Don't  recollect  plaintiff 
as  Josephine  Kehoe ;  she  entered  under  another  name. 
When  she  came  first,  her  left  eye  was  in  a  staphylomatous 
condition ;  there  was  bulging  of  the  cornea,  and  of  the 
sclerotic.  The  whole  front  of  the  eye  was  opaque,  and  she 
had  no  useful  vision.  She  had  a  perception  of  light  from 
darkness.  The  right  eye  was  in  an  inflamed  condition ;  there 
was  a  slight  opacity  of  it,  and  granular  condition  of  the  lids. 
She  was  admitted  to  the  hospital  for  staphyloma,  and  for 
an  operation  for  staphyloma,  by  the  managers,  and  upon  a 
writing  signed  by  her  in  which  the  nature  of  the  disease  was 
specified.  I  told  her  there  ~  was  no  possibility  of  restoring 
vision,  when  she  was  admitted.  I  did  not  say  that  the 
operation  would  restore  sight  to  that  eye.  I  told  her  her 
eye  would  be  well  in  ten  days.  There  was  no  question  of 
restoring  sight ;  there  was  no  possibility  of  it.  I  performed 
the  operation  for  three  reasons  :  1.  To  remove  deformity  ;  2. 
To  allow  an  artificial  eye ;  and,  3.  To  relieve  the  other  eye, 
which  was  then  suffering  from  sympathetic  irritation.  Dr. 
Marshall  Paul,  the  resident  surgeon.  Dr.  Harlan,  the  nurse 
Mrs.  Creary,  Mr.  Smith  the  male  nurse,  were  present  at  the 
operation.  On  removing  the  part,  I  found  the  iris,  cornea, 
and  lens  all  matted  together.  The  plaintiff"  was  often  at 
the  hospital  afterwards  to  have  her  other  eye  treated.  I 
never  heard  any  expression  of  dissatisfaction  from  her. 


268  CIVIL   MALPRACTICE. 

Dr.  Q-ross,  sworn  :  Am  Professor,  Jefferson  Medical  Col- 
lege. In  the  case  of  leucoma  there  is  no  known  remedy 
that  can  restore  sight.  In  staphyloma,  excision  only  will 
give  relief  to  the  patient ;  this  in  order  to  remedy  the  de- 
formity, to  prevent  further  protrusion,  to  relieve  the  lids 
from  pain  and  inflammation,  and  for  the  sake  of  the  other 
eye,  on  account  of  sjmipathetic  inflammation.  I  should  think 
the  operation  an  entirely  proper  one,  if  the  facts  are  as  stated 
by  Dr.  Hall. 

Cross-examined.  I  would  not  operate  in  leucoma.  I  can- 
not form  an  opinion  of  what  was  the  condition  of  the  eye 
from  the  statement  of  the  plaintiff  and  her  witnesses.  Ac- 
cording to  their  testimony,  little,  if  anything,  was  the  mat- 
ter with  the  eye. 

Reexamined.  From  their  statement  that  it  was  partly 
white  and  partly  black,  and  covered  the  white  and  part  of 
the  sight,  I  should  say  it  was  staphyloma. 

Dr.  J.  P.  Morton.,  sworn  :  Physician.  Graduated,  Univer- 
sity of  Pennsylvania,  fourteen  years.  Have  given  particular 
attention  to  diseases  of  the  eye.  There  is  no  remedy  known 
to  medical  science  by  which  sight  can  be  restored.  Some- 
times, in  leucoma,  it  can  be  improved,  wlien  very  recent,  — 
not  in-  this  case  ;  from  the  account,  the  disease  was  of  long 
standing.  I  should  have  thought  Dr.  Hall  would  not  have 
done  his  duty  if  he  had  not  advised  an  operation  in  this 
case. 

Cross-examined.  I  say  so  because  the  sound  eye  would 
have  been  otherwise  injured. 

Dr.  J.  31.  Paul,  sworn  :  Am  a  graduate  of  the  University 
of  Pennsylvania,  two  years  in  March.  Was  resident  phy- 
sician at  Wills'  Hospital  at  the  time  of  the  operation  on 
plaintiff.  I  recollect  her.  She  was  admitted  to  be  operated 
on  for  staphyloma.  The  whole  cornea  of  her  eye  was  opaque. 
Had  no  useful  sight.  Was  present  at  the  operation.  She 
knew  the  operation  was  not  to  restore  sight  to  that  eye.  Had 
conversations  with  her. 

Mrs.    Creary^  sworn :  Was   nurse  at  Wills'   Hospital  in 


IN  OPHTHALMIC  CASES.  269 

1868.  Was  there  three  years.  Recollect  the  admission  of 
this  patient.  Had  conversations  with  her.  She  said  she 
was  to  wear  a  glass  eye,  and  asked  me  if  I  knew  what  it 
would  cost.     I  know  staphyloma.     She  had  staphyloma. 

John  Smithy  sworn.  Am  nurse  at  hospital.  Recollect  the 
plaintiff  came  there  to  have  her  eye  operated  on  for  staphy- 
loma. Have  been  at  the  hospital  for  some  years,  and  am 
well  acquainted  with  eye  diseases.  I  know  it  was  staphy- 
loma she  had.  She  talked  with  me  before  the  operation, 
and  knew  the  nature  of  the  operation,  that  it  was  not  to  give 
sight  to  that  eye.     She  spoke  with  me  about  a  glass  eye." 


Doyle  v.  N.  Y.  Eye  and  Ear  Infiemaey  and  Deeby.i 

(Supreme  Court  Circuit,  New  York.) 

Declaration.  "  Plaintiff  applied  at  infirmary  to  be 
treated  for  an  inflammation  of  an  eye  ;  that  on  one  day  some 
liquid  was  applied  to  his  eye  with  a  brush,  when  a  violent 
inflammation  set  in  which  caused  the  loss  of  both  eyes. 
This  inflammation  was  a  contagious  oj^hthalmia,  communi- 
cated by  the  application  of  the  aforesaid  brush,  which  had 
been  used  in  treating  other  cases  of  contagious  ophthalmia, 
and  which,  through  the  carelessness  and  negligence  of  the 
physician  in  charge  of  the  infirmary,  had  been  imperfectly 
cleaned. 

Damages  claimed  $10,000. 

Plea.     Not  guilty,  and  plaintiff  was  treated  without  fee. 

Trial  by  jury.     Van  Brunt,  J. 

At  the  close  of  the  plaintiff's  testimony  a  motion  was 
made,  on  behalf  of  the  infirmarj^,  to  dismiss  the  complaint, 
on  the  ground  that  the  services  were  given  freely,  without 
fee,  and  there  was,  therefore,  no  basis  of  contract ;  that  no 
gross  negligence  had  been  shown ;  that  the  whole  and  sole 
duty  of  the  infirmary  was  to  select  capable  physicians  and 
surgeons,  and  they  were  not  shown  to  have  neglected  this  ; 
1  N.  Y.  Tribune,  May,  1875. 


270  CIVIL  MALPRACTICE. 

and  such  testimony  as  liad  been  given  showed  affirmatively 
that  the  appliances  furnished  were  proper. 

The  court  ruled  that  the  nearest  analogy  was  in  the  case 
of  passengers  on  free  passes  on  the  railroads,  and  he  believed 
that,  in  almost  every  State,  the  carrier  had  been  held  liable 
for  accidents  occurring  through  the  negligence  of  its  ser- 
vants ;  he  should  therefore  deny  the  motion.  The  motion 
was  then  renewed,  on  behalf  of  Dr.  Derby,  on  the  ground 
of  want  of  proof  of  negligence,  his  counsel  at  the  same  time 
saying  that  he  made  it  only  as  matter  of  duty  to  the  court, 
hoping  the  court,  by  denying  it,  would  admit  their  proof. 
The  court  denied  it. 

Proof  was  then  put  in  for  the  defence.  Royal  Phelps, 
the  president  of  the  infirmary  society,  testified  that  the  sur- 
geons and  assistant  surgeons  were  selected  by  the  surgical 
staff  of  the  institution,  and  appointed  by  the  board  of  trus- 
tees ;  that  Dr.  Derby  came  to  them  most  highly  recom- 
mended ;  that,  after  the  case  of  Doyle  was  first  made  public, 
he  personally  made  most  careful  inquiries  ;  that  he  saw  the 
boy  and  took  down  his  statement,  and  came  to  the  conclu- 
sion that  there  had  been  nothing  wrong  in  the  treatment  of 
the  boy  at  the  infirmary.  Drs.  Bumstead,  Roosa,  and  Ag- 
new,  and  other  physicians  were  called  to  show  that  violent 
inflammation,  or  ophthalmia  of  the  eye,  proceeding  from 
catarrhal  and  other  causes,  were  not  distinguishable  from 
purulent  or  contagious  ophthalmia  ;  that  the  treatment 
adopted  by  the  doctor,  to  whom  the  boy  went  after  leaving 
the  infirmary,  of  hot  fomentations,  was  almost  certain  to 
result,  in  such  cases,  disastrously,  the  true  treatment  being 
the  laying  open  of  the  eyelids,  cold  applications,  and  the  use 
of  caustic.  Dr.  Joyce  testified  that,  when  the  boy  last  came 
to  the  infirmary,  his  eyes  seemed  much  inflamed,  as  from 
cold,  and  were  in  such  a  condition  that  Dr.  Derby  consulted 
with  him  about  the  case,  and  they  advised  the  boy  to  come 
into  the  infirmary  for  treatment.  The  witness  regarded  the 
condition  of  the  boy's  eyes  then  as  serious,  though  not  nec- 
essarily dangerous. 


IN   OPHTHALMIC   CASES.  271 

His  Honor,  in  charging  the  jury,  told  them  that,  however 
great  the  sympathy  the  boy's  terrible  misfortune  might  ex- 
cite, they  were  not  to  be  guided  by  that.  They  were  to  try 
a  plain  question  of  fact.  Had  Dr.  Derby,  after  knowingly 
using  a  brush  on  an  eye  diseased  with  a  certain  contagion, 
used  it  afterwards,  without  proper  precautions,  on  the  eye  of 
the  plaintiff,  thereby  causing  the  loss  of  the  boy's  sight? 
Physicians  in  their  practice  gave  no  guaranty  of  cure,  but 
they  did  guarantee  that  they  would  use  their  best  abilities, 
and  that  they  were  acquainted  with  the  ordinary  appliances 
and  means  of  their  profession,  in  the  cure  of  disease.  It 
did  not  fall  to  every  man  to  attain  the  highest  proficiency  in 
his  profession,  but  a  physician,  in  undertaking  a  case,  must 
be  supposed  to  know  the  ordinary  appliances  and  literature 
of  his  profession,  and  devote  his  best  skill  to  a  cure.  In 
this  case  there  was  no  question  of  Dr.  Derby's  skill  or  knowl- 
edge. That  was  conceded.  The  question  was,  was  he  guilty 
of  criminal  negligence  in  using  a  brush  affected  with  a  poi- 
sonous virus  of  the  kind  named  by  the  plaintiff,  without  tak- 
ing those  means'  to  purify  it  which  he  knew  would  kill  the 
virulence  of  the  poison  ? 

The  boy,  his  Honor  went'  on  to  say,  had  previously  had 
diseases  of  the  eyes,  and  came  to  the  infirmary  and  was 
cured.  On  January  19,  having  a  fresh  attack,  he  came  to 
the  institution  and  was  again  treated,  his  treatment  contin- 
uing to  February  19,  Monday.  On  that  day  the  plaintiff 
says  that  he  saw  the  brush,  which  was  applied  to  his  eyes, 
used  on  other  persons.  When  his  turn  came,  he  being 
among  the  last,  the  application  produced  a  new  and  entirely 
different  sensation  from  what  he  had  ever  before  felt,  causing 
the  water  to  gush  from  his  eyes,  and  making  him  stagger 
into  a  dark  hall,  from  which,  after  some  little  time,  he  Avent 
into  the  street.  He  says  he  was  advised  to  be  out  in  the 
open  air.  On  his  way  home,  at  a  time  which  must  have 
been  between  three  and  four  P.  m.,  he  met  Dr.  Hannan,  who 
noticed  that  his  eyes  were  unusually  inflamed.  He  says  that, 
on  Tuesday,  his  right  eye  was  closed,  and  his  left  began  to 


272  CIVIL  MALPEACTICE. 

be  affected ;  but  Dr.  Noyes,  who  saw  him  on  Wednesday, 
when  he  came  back  to  the  infirmary,  says  that  his  right  eye 
was  not  closed  then.  On  Wednesday  the  boy  was  advised 
to  come  into  the  hospital,  twelve  dollars  being  named  as  the 
price  of  his  board  for  two  weeks.  This,  Dr.  Noyes  explained, 
was  not  made  as  a  demand,  but  as  a  statement  of  what  was 
expected  from  those  who  could  afford  it.  The  boy  did  not 
return,  and  that  afternoon,  as  he  and  his  family  claim,  —  on 
Thursday  as  Dr.  Hannan  testified,  from  his  memorandum  of 
visits,  —  Dr.  Hannan  was  called  in.  On  that  day  the  boy's 
eyes  were  in  a  fearful  condition.  They  did  not  improve 
under  the  treatment  adopted,  and,  on  Monday,  Dr.  Noyes 
was  called,  and  found  the  sight  gone.  Dr.  Hannan  says 
that  Dr.  Noyes  approved  his  treatment,  which  Dr.  Noyes 
denies  ;  but  Dr.  Noyes  admitted  asking  if  the  boy  was  affected 
with  a  contagious  disease.  The  boy  was  not  so  affected, 
unless  in  his  eyes,  and  Dr.  Hannan  claimed  that  he  knew 
that  the  eyes  were  affected  with  this  specific  contagion, 
because  the  discharges  were  more  greenish  than  usual. 

On  the  part  of  the  defence,  Dr.  Derby's  answer  was  two- 
fold :  First,  that  there  had  been  no  jaatient  suffering  from 
this  specific  infection  under  treatment  in  the  infirmary  for 
some  time.  If  he  had  no  reason  to  know  or  suspect  that  the 
brush  had  been  impregnated  with  the  virus,  he  was  not  lia- 
ble. The  other  answer  was  that  the  solution  of  nitrate  of 
silver,  of  the  strength  which  he  used,  must  destroy  the  vital- 
ity of  the  specific  poison  referred  to.  To  this,  all  the  doc- 
tors called  for  the  defence,  except  one,  testified  positively. 
That  one  stated  that  some  physicians  doubted  this.  The 
solutions  used  by  Dr.  Derby  were  5,  10,  30,  and  50  grains 
to  the  ounce.  It  was  the  universal  testimony  of  the  doctors 
that  the  communication  of  the  specific  poison,  referred  to, 
would  cause  no  more  pain  than  the  application  of  any  viscid 
liquid,  and  that  its  inflammatory  effects  would  not  be  devel- 
oped for  at  least  six  hours  ;  while  Dr.  Hannan  noticed  the 
inflammation  in  two  or  three  hours,  and  the  plaintiff  stated 
that  the  pain  was  continuous.     Finally  the  experts  stated 


m  OPHTHALMIC  CASES.  273 

that  there  was  no  possibility  of  distiuguishing  ophthalmia 
arising  from  this  poison  from  any  other  ophthalmia  except 
by  a  history  of  the  case. 

If  Dr.  Derby  was  at  fault,  the  judge  said  that  he  hardly 
knew  what  guide  to  give  the  jury  as  to  damages.  He 
warned  them  against  taking  his  rulings  on  the  law  as  any 
guide  to  his  opinions  on  the  facts.  He  doubted  very  much 
if,  in  any  case,  the  infirmary  could  be  held  liable,  but  his 
mistakes  could  be  corrected  ;  theirs  could  not. 

Ver  diet  for  defendant^ 

COUKTNEY  V.   HENDERSOif. 
(Marine  Court,  New  York.) 

History.  *'  The  plaintiff  was  fifty-seven  years  of  age, 
of  good  habits ;  had  worked  as  foreman  for  ten  years  for 
Messrs.  Pollard,  up  to  last  December,  when  he  quit,  with 
bad  eyes ;  went  to  the  eye  infirmary,  remained  there  from 
six  to  eight  weeks,  when  he  was  induced,  by  a  friend  of  the 
defendant,  to  leave  the  eye  infirmary  and  put  himself  under 
the  defendant's  treatment.  There  had  been  a  gradual  im- 
provement of  his  eyes  from  soon  after  he  entered  the  eye 
infirmary  until  he  left,  and  that  improvement  continued  for 
two  or  three  weeks  after  he  left,  —  no  doubt  being  the  re- 
sult of  the  treatment  he  received  at  the  eye  infirmary,  — 
when  they  began  to  grow  worse.  He  continued,  under  the 
defendant's  treatment  until  July  (about  three  months),  and 
the  defendant  performed  an  operation  on  his  eyes,  and  put 
some  kind  of  powder  into  them.  When  he  first  put  himself 
under  the  defendant's  treatment  he  could  go  there  alone  ;  he 
soon  became  so  blind  he  had  to  be  led  there  by  a  little  boy. 
The  plaintiff  returned  to  the  eye  infirmary  in  July,  but  his 
vision  was  gone  never  to  return.  Dr.  Agi:iew  deposed  that 
he  has  no  doubt  the  plaintiff's  eyes  would  have  got  well  if 
he  had  remained  in  the  eye  infirmary,  or  been  under  good 
treatment  outside.  Dr.  Agnew  and  Dr.  Buck,  both  holding 
positions  in  the  eye  infirmary,  the  only  physicians  who  testi- 

18 


274  CIVIL   MALPliACTICE. 

fiecl  in  relation  to  the  treatment,  had  no  doubt  that  the  plain- 
tiff's eyes  would  have  recovered  under  proper  treatment. 

They  both  gave  a  history  of  their  practice  in  diseases  of 
the  eye,  which  is  different  from  the  defendant's  practice,  as 
testified  to  and  shown  by  a  card  which  is  admitted  to  be  his. 
The  defendant  offered  to  prove  by  a  score  of  persons  that 
they  had  had  bad  eyes,  and  been  treated  for  them  by  the 
defendant,  and  got  well  or  improved,  which  was  ruled  out 
by  the  court.^  The  defendant's  counsel  raised  several  points, 
bvit  the  second  one  is  sufficient  to  state.  ''That  an  error  in 
judgment  is  not  malpractice.'' 

The  court  held  that  to  be  good  law  when  applied  to  a  man 
skilled  in  anatomy,  surgery,  or  physics,  but  that  it  had  no 
application  in  this  case  ;  that  the  defendant,  knowing  noth- 
ing of  anatomy,  surgery,  or  physics,  could  have  no  judgment 
in  the  matter.  The  law  contemplated  a  judgment  founded 
upon  skill  and  knowledge  in  these  sciences.  That  man  who 
would  hold  himself  out  to  the  world  as  a  doctor  and  an  ocu- 
list, without  a  diploma,  without  any  knowledge  of  these  sci- 
ences, and  under  such  false  ■  pretences  obtain  a  patient,  and 
commences  tinkering  with  the  most  delicate  of  all  the  or- 
gans, the  eye,  must  be  reckless  indeed.  An  error  in  judg- 
ment, of  a  man  skilled  in  a  particular  calling,  is  not  malprac- 
tice, unless  it  is  a  gross  error.  But  error  in  judgment  in  a 
science,  of  a  man  unskilled  in  that  science  (if  such  a  thing 
can  be),  is  malpractice.  In  other  words,  a  person  attempting 
to  practise,  in  physic  or  surgery,  without  first  having  ob- 
tained a  knowledge  of  such  science,  is  liable  for  all  the  dam- 
age that  is  the  result  of  his  practice.  I  have  no  doubt  the 
plaintiff  lost  his  vision  through  the  defendant's  treatment, 
and  that  the  treatment  was  the  result  of  ignorance  on  his 
part. 

Judgment  for  the  plaintiff,  $500  ;  allowance,  &c.,  112.00." 

The  ruling  of  the  court  in  this  case  was  eminently  just. 
The  possession  of  a  diploma,  or  some  other  evidence  of  knowl- 

1  See  the  two  cases  of  Rex  v.  Lo7ig,  where  the  court  permitted  such  witnesses 
to  testify. 


IN  OPHTHALMIC  CASES.  275 

edge  in  anatomy,  physiology,  &c.,  should  be  required  of  evei-y 
man  who  sets  himself  up  as  a  doctor  in  medicine,  to  treat 
diseases  or  to  act  as  an  expert  in  a  court  of  law,  where  ques- 
tions of  skill  in  medicine  and  surgery  are  in  issue.  The 
riglitfid  possession  of  such  diploma  or  certificate  should  be 
determined,  by  requiring  the  possessor  to  answer  under  oath, 
whether  he  had  pursued  such  course  of  study  as  is  usually 
prescribed  by  most  medical  schools,  and  whether  he  had  been 
regularly  examined  by  the  authorities  whose  names  are  ap- 
pended to  such  diploma  or  certificate  of  competency.  Al- 
though this  might  not  keep  incompetent  men  entirely  out  of 
the  profession,  it  could  only  result  in  good.^ 

1  The  powers  now  vested  in  city  boards  of  health  with  regard  to  the  registra- 
tion of  the  fact  and  cause  of  death,  as  a  preliminary  to  granting  bui'ial  permits,, 
ought  to  be  made  use  of  to  shield  the  poor  from  the  tender  mercies  of  quack 
doctors The  Boston  Board  of  Health  in  its  last  report  cites  the  follow- 
ing certiticate,  to  which  a  "doctress"  affixed  her  mark  :  "This  certifies  that  A 
beby  boy  died  on  the  iornday  of  Febberiy,  1876.  Cause  of  death,  'Born.'" 
Other  "  physicians,"  of  both  sexes,  we  presume,  enumerated  among  the  causes 
of  death  "cancrum,"  "canker  and  spasms,"  "lack  of  vetallity,"  "lack  of  vil- 
lalitj',"  " daeth  barne,"  "canker  humer,"  "swallowing,"  "lung  diess  [disease],"' 
"  canther  of  the  bowels,"  "  scharletena,"  and  "  chituses."  ....  The  report 
continues  :  "  The  question  who  is  a  physician,  within  the  meaning  of  sect.  3  of. 
chap.  21  of  the  Gen.  Sts.  still  comes  back  to  us,  and  ought  to  be  settled.  Is. 
every  person  who  holds  himself  or  herself  out  as  such,  attending  another  in  his-, 
last  illness,  a  physician  within  the  meaning  of  the  statute  ?  Are  we  to  take  the 
certificate  of  every  soi-disant  physician,  and,  upon  that  alone,  give  a  permit  for, 
burial ■?  Is  he  or  she  a  physician  who  has  no  degree,  no  diploma;  who  has, 
never  studied  medicine ;  who  has  had  little  or  no  experience  ;  who  cannot  spell 
the  name  of  a  disease  so  that  it  can  be  read  or  understood,  and  who  cannot^ 
write  his  or  her  name  at  all,  but  who  simply  makes  a  mark?  If  so,  what  weights 
shall  we  give  to  such  certificates  1  Of  what  possible  value  are  they  1"  —  J'he 
Nation,  October  12,  1876,  p.  228. 


276  CIVIL  MALPKACTICE. 


CHAPTER   XI. 

ALLEGED   MALPEACTICE  IN  OBSTETRIC   CASES. 

Rex  v.  Williamson.^ 

History  and  Evidence.  "  The  defendant  was  indicted 
for  the  murder  of  Ann  Delacroix,  at  the  parish  of  St.  James, 
Westminster ;  he  was  also  charged  with  manslaughter  by  the 
coroner's  inquisition. 

The  defendant  was  about  seventy-five  years  of  age.  He 
was  not  a  regularly  educated  accoucheur,  but  was  a  person 
who  had  been  in  the  habit  of  acting  as  a  man-midwife  among 
the  lower  classes  of  people. 

From  the  evidence  of  Elizabeth  Garret,  the  nurse  who 
waited  upon  Mrs.  Delacroix,  it  appeared  that  Mrs.  D.  had 
been  delivered  by  the  defendant  of  a  male  child,  on  Friday, 
the  17th  day  of  September,  and  that,  on  the  Sunday  follow- 
ing, an  unusual  appearance  took  place,  which  the  medical 
witnesses  stated  to  be  a  prolapsus  uteri.  This  the  defend- 
ant mistook  for  a  remaining  part  of  the  placenta,  which  had 
not  been  brought  away  at  the  time  of  the  delivery  ;  he  at- 
tempted to  bring  away  the  prolapsed  uterus  by  force,  and,  in 
so  doing,  he  lacerated  the  uterus,  and  tore  asunder  the  mes- 
entric  artery.  This  caused  the  death  of  the  patient,  and  it 
appeared  from  the  testimony  of  a  number  of  medical  wit- 
nesses that  there  must  have  been  great  want  of  anastomical 
knowledge  in  the  defendant. 

The  defendant  in  his  defence  said  that  he  had  acted  ac- 
cording to  the  best  of  his  judgment. 

I  3  Carr.  &  P.  635. 


IN  OBSTETEIC  CASES.  277 

Fourteen  women  were  called  as  witnesses  for  the  defence, 
all  of  whom  had  been  delivered  by  the  defendant  at  different 
times ;  but  six  only  were  examined,  and  they  spoke  to  the 
kindness  and  attention  that  the  defendant  had  displayed, 
and  also  to  his  skill,  so  far  as  they  were  able  to  judge. 

The  trial  was  held  at  Old  Bailey,  in  1807,  Lord  Ellen- 
BOEOUGH,  C.  J. 

In  summing  up,  the  learned  chief  justice  said :  '  There 
has  not  been  a  particle  of  evidence  adduced  which  goes  to 
convict  the  defendant  of  the  crime  of  murder  ;  but  still  it 
is  for  you  to  consider  whether  the  evidence  goes  so  far  as 
to  make  out  a  case  of  manslaughter.  To  substantiate  that 
charge,  the  defendant  must  have  been  guilty  of  criminal  mis- 
conduct, arising  either  from  the  grossest  ignorance  or  the 
most  criminal  inattention.  One  or  other  of  these  is  neces- 
sary to  make  him  guilty  of  that  criminal  negligence  and 
misconduct,  which  was  essential  to  make  out  a  case  of  man- 
slaughter. It  does  not  appear  that,  in  this  case,  there  was 
any  want  of  attention  on  his  part ;  and,  from  the  evidence 
of  the  witnesses  on  his  behalf,  it  appears  that  he  had  deliv- 
ered many  women,  at  different  times,  and  from  this  he  must 
have  had  some  degree  of  skill.  It  would  seem  that,  having 
placed  himself  in  a  dangerous  situation,  he  became  shocked 
and  confounded.  I  think  that  he  could  not  possibly  have 
committed  such  mistakes  in  the  exercise  of  his  unclouded 
faculties  ;  and  I  own  that  it  appears  to  me  that,  if  you  find 
the  prisoner  guilty  of  manslaughter,  it  will  tend  to  encom- 
pass a  most  important  and  anxious  profession  with  such  dan- 
gers as  would  deter  reflecting  men  from  entering  into  it. 

Verdict,  Not  guilty T 

Bowman  v.  Woods. ^ 

"  The  opinion  of  the  court  was  given  by  Geeene,  J. 
The  proceedings  below  were  against  Bowman  for  malprac- 
tice, as  a  physician,  in  a  case  of  accouchement.     Verdict  for 
1  1  Greene  (Iowa),  441. 


278  CIVIL  MALPRACTICE. 

the  plaintiff,  and  his  damages  assessed  at  fifty  dollars.  The 
bill  of  exceptions  gives  the  substance  of  a  Dr.  Coffin's  testi- 
mony, who,  it  appears,  was  called  in  as  consulting  physician 
about  thirtj^-six  hours  after  the  delivery.  At  that  time  Dr. 
Coffin  states,  that  the  after-birth  was  not  removed,  and  the 
patient  was  greatly  prostrated  by  the  severity  of  the  labor 
and  loss  of  blood  ;  that  she  was  also  suffering  from  a  disten- 
sion of  the  bladder,  which  had  not  been  evacuated  since  par- 
turition. He  gave  it  as  his  opinion  that  the  placenta,  and 
the  distended  state  of  the  bladder,  should  have  been  removed 
at  a  much  earlier  period,  and  that  such  delay  would  be  likely 
to  produce  puerperal  fever.  Several  other  physicians,  as 
witnesses,  concurred  in  Dr.  C.'s  view  of  the  practice. 

The  defendant  then  offered  to  prove  that  he  was  a  botanic 
physician,  and  that,  according  to  the  botanic  system  of  prac- 
tice and  medicine,  it  is  considered  improiyer  to  remove  the 
placenta,  and  that  it  should  be  permitted  to  remain  till  ex- 
pelled by  efforts  of  nature.  But  the  proof  of  these  facts 
being  objected  to,  was  ruled  out  by  the  court.  In  this  we 
think  there  is  error.  As  yet  there  is  no  particular  system 
of  medicine  established,  or  favored,  by  the  laws  of  Iowa ; 
and  as  no  system  is  upheld,  none  is  prohibited. 

The  regular,  the  botanic,  the  homoeopathic,  the  hydro- 
pathic, and  other  modes  of  treating  disease,  are  alike  un- 
prohibited ;  and  each  receives  more  or  less  favor  and  patron- 
age from  the  people. 

Though  the  regular  system  has  been  advancing,  as  a  sci- 
ence, for  centuries,  aided  by  research  and  experience,  by 
experience  and  skill,  still  the  law  regards  it  with  no  par- 
tiality or  distinguishing  favor ;  nor  is  it  recognized  as  the 
exclusive  standard  or  test  by  which  the  other  systems  are  to 
be  adjudged.  The  evidence  of  the  experienced  practitioner 
of  either  system  is  equally  admissible  in  giving  opinions 
upon  questions  of  medical  skill.  But,  in  the  question  before 
us,  the  objection  does  nor  appear  to  be  the  disqualification  or 
skill  of  the  witnesses,  but  rather  the  facts  which  the  defend- 
ant proposed  proving  by  them.     In   these  facts  we  can  see 


IN  OBSTETRIC  CASES.  ,  279 

nothing  irrelevant  or  inadmissible  ;  and,  as  matter  of  defence 
to  the  jury,  the  defendant  was  entitled  to  the  benefit  of 
them.  A  person  professing  to  follow  one  system  of  medical 
treatment  cannot  be  expected  by  his  employer  to  practise 
any  other.  While  the  regular  physician  is  expected  to  follow 
the  rules  of  the  old  school,  in  the  art  of  curing,  the  botanic 
physician  must  be  equally  expected  to  adhere  to  his  adopted 
method.  But,  on  the  part  of  every  medical  practitioner,  the 
law  implies  an  undertaking  that  he  will  use  an  ordinary 
degree  of  care  and  skill  in  medical  operations,  and  he  is 
unquestionably  liable  for  gross  carelessness  or  unskilfulness 
in  the  management  of  his  patients ;  and  still  the  person  who 
employs  a  botanic  practitioner  has  no  right  to  expect  the 
same  kind  of  treatment,  or  the  same  kind  of  medicine,  that 
a  regular  physician  would  administer.  The  law  does  not 
require  a  man  to  accomjalish  more  than  he  undertakes,  nor  in 
a  different  manner  from  what  he  professes.  Therefore,  in 
this  case,  if  the  defendant  below  could  show  that  he  was 
emplo^'ed  as  a  botanic  physician,  and  that  he  performed  the 
accouchement  with  ordinary  skill  and  care,  in  accordance 
with  the  system  he  professed  to  follow,  we  should  regard  it  as 
a  legal  defence.  It  should  show  a  full  compliance  with  his 
profession  and  undertaking,  and,  if  injury  resulted  from  it 
to  the  plaintiff,  he  could  blame  no  one  but  himself.  Story, 
in  his  work  on  Bailments,  §  435,  says  :  'But  even  where  the 
particular  business  or  employment  requires  skill,  if  the  bailee 
is  known  not  to  possess  it,  or  he  does  not  exercise  the  partic- 
ular art  or  emploj^ment  to  which  it  belongs,  and  he  makes  no 
pretension  to  skill  in  it ;  then,  if  the  bailor,  with  full  notice, 
trusts  him  with  the  undertaking,  the  bailee  is  bound  only  for 
a  reasonable  exercise  of  the  skill  which  he  professes,  or  of 
the  judgment  which  he  can  employ ;  and  if  any  loss  ensue 
from  want  of  due  skill,  he  is  not  chargeable.  Thus '  (to  put 
a  case  borrowed  from  the  Mohammedan  law),  'if  a  person 
will  knowingly  employ  a  common  mat  maker  to  weave  or 
embroider  a  fine  carpet,  he  may  impute  the  bad  workman- 
ship to  his  own  folly.     So  if  a  man,  having  a  disease  in  his 


280  CIVIL  MALPRACTICE. 

eyes,  sliould  employ  a  farrier  to  cure  the  disease,  and  he 
should  lose  his  sight  by  the  remedies  prescribed  in  such  cases 
for  horses,  he  certainly  would  have  no  cause  for  complaint.' 

Judge  Story  then  goes  on  to  state,  that,  in  all  such  cases, 
the  employer  ought  properly  to  attribute  the  loss  or  injury 
to  his  own  negligence  and  mismanagement.  The  case  of  the 
Commomvealth  v.  Thompson,  6  Mass.  134,  exhibits  a  revolt- 
ing case  of  malpractice,  in  which  lobelia  was  administered  to 
such  indiscriminate  excess  as  to  produce  death.  Still  it  was 
held  that,  if  a  medical  pretender  administers  medicine  to  his 
patient,  with  an  honest  intention  and  expectation  of  cure, 
but  which  causes  death,  the  party  prescribing  cannot  be  ad- 
judged guilty  ;  and  that  '  there  is  no  law  which  prohibits  any 
man  from  prescribing  for  a  sick  person,  with  his  consent,  if 
he  honestly  intends  to  cure  him  by  his  prescription.' 

The  people  are  free  to  select  from  the  various  classes  of 
medical  men,  who  are  accountable  to  their  employers  for  all 
injuries  resulting  from  a  want  of  ordinary  diligence  and  skill 
in  their  respective  systems  of  treating  diseases.  It  is  to  be 
lamented  that  so  many  of  our  citizens  are  disposed  to  trust 
health  and  life  to  novices  and  empirics,  to  new  nostrums  and 
methods  of  treatment.  But  these  are  evils  which  courts  of 
justice  possess  no  adequate  power  to  remedy.  Enlightened 
public  opinion  and  judicious  legislation  may  do  much  to  dis- 
countenance quackery  and  advance  medical  science. 

The  only  other  error  assigned  in  this  case,  which  we  deem 
it  necessary  to  notice,  is  in  relation  to  the  admission  of  med 
ical  books  as  evidence.  It  appears  that  the  defendant  offered 
to  introduce  certain  medical  books,  which  witnesses  had  de- 
clared as  standard  works  on  botanic  medicine,  and  from  which 
they  claimed  to  have  derived  much  of  their  professional 
knowledge,  but,  on  objection,  the  court  excluded  them. 
The  authorities  on  this  point  are  not  uniform  ;  but  the  dis- 
trict judge  decided  in  conformity  to  the  prevailing  decisions 
of  at  least  the  English  courts.  In  the  case  of  Collier  v. 
Simpson,  5  C.  &  Payne's  N.  P.  R.  73,  it  was  decided  that 
medical  books  are  not  admissible  in  evidence,  though  profes- 


IN  OBSTETRIC  CASES.  281 

sional  witnesses  may  be  asked  the  grounds  of  their  judgment 
and  opinion,  which  might  in  some  degree  be  founded  on  these 
books,  as  a  part  of  their  knowledge. 

Judge  Abbot,  in  the  trial  of  Donal,  for  poisoning,  refused  an 
appeal  to  the  works  of  Th^nard,  and  said,  '  We  cannot  take 
the  fact  from  any  publication ;  we  cannot  take  the  fact  as  re- 
lated by  any  stranger.'  But  in  the  trial  of  Spencer  Cooper  the 
court  permitted  medical  authorities  to  be  read  ;  Guy's  Foren- 
sic Medicine,  11 ;  and  Dr.  Beck,  in  his  excellent  work  on 
Medical  Jurisprudence,  vol.  ii.  page  666,  states  that  in  this 
country  an  objection  has  never  been  made  to  the  introduction 
of  authority,  or  observation  of  others,  as  testimony,  by  medical 
men.  In  this  we  think  the  author  mistaken,  for  an  appeal  to 
medical  authorities  has  been  disallowed  by  some  of  the  courts 
of  this  country  ;  though  physicians,  when  testifying,  are  per- 
mitted to  refer  to  medical  authors,  and  to  quote  authors,  we 
can  see  no  reason  why  they  may  not  read  the  views  and  opin- 
ions of  distinguished  authors.  The  opinion  of  an  author  as 
contained  in  his  works  we  regard  as  better  evidence  than  the 
mere  statement  of  those  opinions  by  a  witness,  who  testifies 
as  to  his  recollection  of  them  from  former  reading.  Is  not 
the  latter  secondary  to  the  former?  On  the  whole  we  think 
it  the  safer  rule  to  admit  standard  medical  books  as  evidence 
of  the  author's  opinions  uppn  questions  of  medical  skill  or 
practice  involved  in  a  trial.  This  rule  appears  to  us  the 
most  accordant  with  well  established  principles  of  evidence. 

Judgment  reversed.'''' 

This  decision  lays  down  what  we  think  should  be  the  law 
in  every  case.  What  right  have  patients,  with  the  means 
of  arriving  at  more  correct  ideas  in  respect  to  the  different 
methods  of  practice,  to  ask  that  regular  physicians  shall 
assist  them  to  prove  that  the  methods  of  treatment  fol- 
lowed by  the  "  Eclectic,"  "  Botanic,"  "  Physio-Medical," 
"  Electrical,"  "  Thompsonian,"  "Homoeopath,"  "  Reformed," 
"  Indian  doctor,"  Cancer  doctor,"  "  Indianopathist,"  "  Clair- 
voyant doctor,"  et  id  genus  omne,  are  malpractice  ?    Or  what 


282  CIVIL  MALPRACTICE. 

right  have  they  to  ask  that  the  treatment  they  solicited  shall 
be  conformable  to  the  rules  of  legitimate  medicine  ? 

What  is  meant  by  the  terms  "  regular  "  and  "  legitimate," 
used  in  this  connection  ?  A  "  regular  "  physician  is  one  who 
has  made  anatomy,  physiology,  and  hygiene  the  foundation 
upon  which  to  build,  by  the  exercise  of  common  sense  (and 
the  more  of  this  latter,  the  more  skilful  the  physician),  an 
enlightened  and  rational  practice  ;  selecting  from  the  whole 
realm  of  nature,  animal,  vegetable,  and  mineral  remedies 
which  have  been  found  beneficial  in  the  treatment  of  disease, 
repudiating  the  term  "Allopathic"  as  being  false  in  theory 
and  false  in  application.  The  practice  of  these  doctrines  is 
"  legitimate  medicine,"  handed  down  from  the  times  of  Hip- 
pocrates, —  a  true  apostolic  succession,  as  grand  in  its  results 
to  man's  physical  welfare  as  that  succession  in  the  moral 
world  has  been  to  his  spiritual  welfare. 

Graxnis  v.  Beanden.i 

"  Mitchell,  C.  J.  (After  stating  the  case.)  The  first 
objection  on  which  the  present  motion  is  grounded  is,  that 
no  evidence  ought  to  have  been  admitted  on  the  trial,  re- 
lating to  the  wounds  inflicted  by  the  defendant  upon  the 
plaintiff's  wife,  because  the  only  point  in  issue  between  the 
parties  was,  whether  the  defendant  had  neglected  to  perform 
his  professional  duty.  This  objection  proceeds  from  a  mis- 
conception of  the  cause  of  action. 

The  gravamen  is  the  defendant's  ignorance,  negligence, 
and  want  of  skill ;  which  may  be  as  clearly  evinced  by  mis- 
feasance as  by  nonfeasance  ;  by  positive  acts  as  well  as  by 
negligent  ones.  The  declaration  clearly  shoAvs  that  the  ac- 
tion is  founded  on  both  grounds.  The  defendant  is  charged 
not  onl}^  with  ignorance  and  negligence,  in  permitting  the 
plaintiff's  wife  to  remain  in  great  distress  for  two  days,  but 
with  an  attempt  to  deliver  her  in  an  unskilful  uianner,  pur- 
suing a  course  of  practice  not  warranted  by,  and  contrary  to, 
the  established  rules  of  proceeding  in  similar  cases. 

1  5  Day,  260. 


IN  OBSTETRIC  CASES.  283 

The  plaintiffs  sustained  damage  in  both  ways :  that  is  to 
say,  the  plaintiff's  wife  endured  great  pain,  and  was  in  im- 
minent hazard  of  her  life  from  the  omission  and  negligence 
of  the  defendant ;  and  she  also  received  irreparable  injury 
and  lasting  wounds  from  his  unskilful  practice.  If,  then,  the 
whole  declaration,  taken  together,  contains  several  distinct 
allegations,  all  going  to  constitute  the  gravamen^  or  one  sin- 
gle cause  of  action,  all  being  pai'ts  of  the  principal  charge, 
there  can  be  no  doubt  that  all  these  allegations  may  be 
proved,  as  pertinent  to  the  issue.  To  warrant  the  admission 
of  such  proof  it  is  sufficient  if  such  allegations  appear  in  the 
declaration.  The  allegata  et  prolata  must  agree.  This  is 
the  only  criterion  by  which  the  court  can  determine  as  to  the 
relevancy  of  the  testimony  offered  on  the  trial.  If  the  facts 
alleged  in  the  declaration  constitute  two  or  more  distinct 
causes  of  action,  which  cannot  be  joined,  the  defendant  should 
seek  redress  by  motion  in  arrest. 

Again,  it  is  further  objected  that  the  several  particular 
circumstances  attending  the  transaction  in  question,  ought  to 
have  been  explicitly  and  distinctly  set  forth  in  the  declara- 
tion to  warrant  the  admission  of  the  evidence  ;  or  that  all 
the  facts  intended  to  be  proved  on  the  trial  should  have  been 
stated  in  the  declaration. 

But  this  is  not  necessary,  according  to  the  rules  and  prece- 
dents in  analogous  cases.  In  actions  of  assault  and  battery 
a  general  statement  is  sufficient  to  let  in  proof  of  particular 
acts,  and  all  the  circumstances  attending  the  transaction  ; 
and  there  is  sufficient  precision  if  the  cause  of  action  be  so 
defined  that  the  party  may  plead  the  judgment  in  bar  of  an- 
other suit  for  the  same  cause. 

It  is  apparent  that  the  allegations  relating  to  the  wounds 
received  by  the  plaintiff's  wife  were  introduced  for  the  pur- 
pose of  laying  a  foundation  for  a  claim  to  damages,  either  as 
a  part  of  tlie  cause  of  action  or  by  way  of  aggravation.  In 
either  case  the  judgment  would  be  a  good  bar  to  another 
action  brought  for  the  same  cause. 

Besides,  there  are  many  cases  where  the  law,  to  preserve 


284  CIVIL  MALPEACTICE. 

the  chastity  of  the  record,  admits  generality  in  the  statement 
of  facts  ;  although  such  general  mode  of  declaring  would 
not  be  strictly  conformable  to  technical  rules  in  other  cases. 

In  this  case  there  is  no  necessity  of  resorting  to  this  prin- 
ciple ;  for  the  fact  proved  on  the  trial  was  sufficiently  stated 
in  the  declaration,  to  warrant  the  admission  of  proof  of  all 
the  attendant  circumstances. 

It  is  also  claimed  that  the  court  erred  in  admitting  evi- 
dence to  show  that  the  defendant  falsely,  or  improperly,  pre- 
tended that  the  plaintiff's  wife  was  infected  with  the  vene- 
real disease.  This  was  proper  evidence  for  the  consideration 
of  the  jury,  if  introduced  for  the  purpose  of  showing  that 
the  defendant  was  ignorant  of  the  true  state  of  the  patient's 
case.  And  if  the  defendant  himself,  who  might  be  supposed 
to  make  the  best  of  his  case,  had  alleged  the  existence  of 
such  a  disease  as  the  only  cause  of  his  ill  success,  the  plain- 
tiff, by  disproving  this  charge,  might  furnish  good  ground 
for  the  jury  to  infer  that  the  want  of  success  was  attribu- 
table solely  to  the  ignorance  or  misconduct  of  the  defendant. 
For  this  purpose,  alone,  the  evidence  was  admitted  ;  as  the 
court  charged  the  jury  that  it  was  not  to  be  considered  as 
enhancing  the  damages.  In  this  view  the  evidence  was 
proper. 

The  next  objection  relates  to  the  admission  of  evidence  to 
show  the  general  character  of  the  defendant,  and  that  he 
was  not  a  regularly  educated  physician  and  surgeon.  Such 
pvidence  would  have  been  improper  if  it  had  been  offered  to 
increase  the  amount  of  damages.  In  such  case  it  would  have 
been  considered  as  setting  up  a  new  and  distinct  cause  of 
action  inconsistent  with  the  allegation  in  the  declaration. 
But  the  defendant,  in  the  first  place,  introduced  evidence  of 
his  general  character,  to  raise  a  presumption  in  favor  of  his 
skill  and  knowledge  in  his  profession.  It  then  became  nec- 
essary, and  it  was  competent,  for  the  plaintiffs  to  rebut  this 
proof.  This  is  analogous  to  established  principles  of  law. 
Whenever  the  character  of  a  party  is  not  immediately  in 
issue,  and  cannot  be  directly  impeached  in  the  first  instance, 


IN  OBSTETEIC  CASES.  285 

yet,  if  be  himself  first  introduces  evidence  in  support  of  it, 
tlie  other  party  shall  be  permitted  to  rebut  the  evidence,  by 
impeaching  his  general  character  ;  the  party  himself  having 
put  it  in  issue.  The  defendant  himself  laid  the  foundation 
of  this  evidence  by  first  introducing  witnesses  in  support  of 
his  character.  Whether  the  evidence  was  properly  admitted 
is  not  now  the  question. 

It  is  also  insisted  that  the  court,  on  the  circuit,  ought  to 
have  compelled  Dr.  Gilbert,  a  witness,  to  answer  the  ques- 
tions put  to  him  on  the  trial  of  the  motion  in  arrest,  relating 
to  certain  improper  conversations  between  him  and  one  of 
the  jurors,  while  the  jury  had  the  cause  under  consideration. 
It  ought  to  be  remarked  that,  before  any  particular  questions 
were  suggested,  a  general  inquiry  appears  to  have  been  made 
of  the  witness,  relating  to  the  subject  matter  of  the  motion, 
who  replied,  '  that  he  knew  nothing  of  any  conversation, 
other  than  was  stated  in  the  motion,  to  have  been  held  be- 
tween himself  and  one  Read,  a  juror.'  The  only  conversation 
stated  in  the  motion  in  arrest,  between  the  witness  and  Read, 
was  one  in  which  both  took  a  part,  and  consisted  of  certain 
remarks  and  assertions  made  by  the  witness,  to  which  the 
juror  barely  replied  or  assented.  Hence,  whatever  may  have 
been  the  conversation,  it  is  evident  that  the  witness  is  a  par- 
taker, or,  at  least,  equally  concerned  with  the  juror  ;  espe- 
cially, as  the  witness  was  the  instigator  and  the  prime  mover 
of  the  conversation. 

This  answer  contains,  first,  any  declaration  or  conversation 
by  any  other  juror  than  Read,  in  the  presence  or  hearing  of 
the  witness,  relating  to  the  cause.  And,  secondly,  a  denial 
of  any  declaration  whatever,  made  even  by  Read,  in  his 
presence  or  hearing,  except  such  as  had  been  made  by  way 
of  reply  to  his  own  remarks,  and  in  concurrence  with  them, 
because  no  other  declaration  or  conversation  was  detailed  in 
the  motion  ;  and  the  witness  had,  by  his  general  answer, 
limited  his  knowledge  of  any  conversation  to  that  which  was 
stated  in  the  motion  to  have  been  held  between  him  and 
Read.     In  that  conversation  it  appears,  from  what  has  al- 


286  CIVIL   MALPRACTICE. 

ready  been  stated,  that  lie  must  have  been  as  much  impli- 
cated as  the  juror  ;  and  he  refused  to  disclose  it  because  it 
was  of  such  a  nature  that  he  could  not  testify  to  any  part  of 
of  it  without  criminating  himself.  The  general  answer  of 
the  witness  embraced  all  the  particular  questions  afterwards 
proposed,  and  the  court  was  not  bound  to  require  the  answer 
to  bei'epeated. 

The  only  remaining  question  relates  to  the  validity  of  the 
objection  of  the  witness  (Dr.  Gilbert)  to  disclose  the  conver- 
sation which  took  place  between  him  and  the  juror.  The 
witness  assumed  the  right  of  determining  whether  the  dis- 
closure would  criminate  himself.  If  he  is  to  be  considered  the 
sole  judge  of  the  effect  of  his  testimony,  as  it  relates  to  him- 
self, it  is  immaterial  whether  he  decide  the  question  right  or 
wrong.  The  court,  on  this  principle,  can  inquire  no  further. 
If  he  testifies  that  his  disclosures  will  expose  him  to  be  pros- 
ecuted criminally,  it  is  conclusive.  The  court  cannot  compel 
a  witness  against  his  will  to  disclose  facts  which  will  expose 
him  to  a  criminal  prosecution.  Nemo  tenetur  seipsum  accu- 
sare.  But  the  application  of  this  principle  in  every  case,  so 
as  to  preserve  the  rights  of  the  party,  the  prerogative  of  the 
court,  and  the  privilege  of  the  witness,  is  attended  with  some 
difiiculty.  On  the  one  hand  it  may  be  said  that  the  wit- 
ness has  no  right  to  deprive  the  party  of  the  benefit  of  his 
testimony,  by  any  false  conceit  of  his  own,  or  an  incorrect 
opinion  of  the  law  ;  and,  on  the  other  hand,  it  may  be  con- 
tended that,  if  the  court  should  claim,  exclusively,  the  right 
to  determine,  in  all  cases,  they  must  first  compel  the  witness 
to  disclose  his  answer  before  they  can  decide  the  question ; 
which  would  effectually  deprive  him  of  the  protection  which 
the  law  intended  to  afford  him.  The  witness  alone  can  know 
what  his  answer  must  be,  and  he  only  can  determine  how 
it  may  affect  or  expose  him.  Although  the  question  may 
apj)ear  to  the  court  to  be  indifferent,  yet  tlie  witness  may 
be  sensible  that  it  would  supply  a  link  in  the  chain  which 
would  lead  to  a  conviction  for  a  crime.  Such  was  the  ques- 
tion to  the  Roman  Catholic  priest,  reported  in  the  books. 


IN  OBSTETRIC  CASES.  287 

He  alone  could  see  how  an  answer,  agreeable  to  the  truth, 
would  subject  him  to  penalties,  and  the  court  had  no  data 
by  which  to  decide,  without  first  compelling  tlie  witness  to 
surrender  his  privilege,  and  furnish  the  evidence  for  his  own 
conviction.  There  is  a  difficulty  in  establishing  a  general 
rule  which  will  effectually  preserve  the  rights  of  the  witness, 
and,  at  the  same  time,  protect  the  party  against  a  corrupt 
design  of  the  witness  to  hide  behind  the  shield  of  his  privi- 
lege facts  important  to  him,  and  such  as  would  not  implicate 
the  witness. 

But  in  this  case  there  is  no  necessity  of  deciding  the  ques- 
tion. It  appears,  clearly,  that  an  affirmative  answer  would 
have  implicated  the  witness  in  a  crime,  and  that  a  disclosure 
of  any  part  of  the  conversation  stated  to  have  been  held 
witb  the  juror,  would  have  fixed  upon  him  the  crime  of  em- 
bracery. The  conversation  with  Read,  as  stated  in  the  mo- 
tion, consisted  entirely  of  remarks  made  by  the  witness  re- 
specting the  nature  of  the  cause,  and  the  nature  and  character 
of  the  evidence  offered  on  the  trial,  or  the  principles  on  which 
the  jury  ought  to  decide  the  case  under  their  consideration. 
The  remarks  thus  made  were  obviously  calculated  to  influ- 
ence the  juror  in  favor  of  one"  party  and  against  the  other. 
Indeed,  the  motion  in  arrest  is  grounded  upon  the  undue 
influence  or  bias  which  the  conversation  was  calculated  to 
excite  in  the  mind  of  the  juror.  This  amounts  to  embra- 
cery, which  consists  in  an  attempt  to  influence  a  jury  cor- 
ruptly ;  whether  this  be  done  by  persuasion  or  bribery  is 
immaterial.  It  is  acknowledged  to  be  a  crime  of  deep 
hue,  polluting  and  corrupting  the  source  and  fountain  of  jus- 
tice ;  and,  if  the  facts  stated  in  the  motion  could  be  proved, 
both  the  witness  and  juror  would  be  liable  to  punishment. 
When  the  witness,  in  his  answer  to  the  question  proposed  to 
him,  limited  his  knowledge,  respecting  the  conversation  with 
the  juror,  to  the  facts  stated  in  the  motion,  it  must  have  been 
perfectly  obvious  that  he  could  not  disclose  the  conversation, 
nor  any  part  of  it,  without  implicating  himself  in  the  crime 
of  embracery.     It  became  the  duty  of  the  court,  therefore, 


288  CIVIL   MALPKACTICE. 

to  protect  the  Tvitness  in  the  enjoyment  of  a  privilege  which 
he  had  a  right  to  claim,  and  which  the  law  secures  to  him, 
upon  the  soundest  principles  of  policy  and  the  plainest  dic- 
tates of  reason. 

I  am  of  opinion,  therefore,  that  a  new  trial  ought  not  to 
be  granted. 

In  this  opinion  the  other  judges  severally  concurred,  ex- 
cepting Ingeesoll,  J.,  who,  having  been  of  counsel  in  the 
cause,  did  not  judge.  l^ew  trial  not  to  he  granted.'''' 


IN  VENESECTION.  289 


CHAPTER   XII. 

ALLEGED  MALPEACTICE   IN  VENESECTION,  ETC. 
HAKCKE  V.   HOOPEE.I 

"  TiNDAL,  C.  J.  The  declaration  stated  that  the  plain- 
tiff, on  the  24th  of  June,  1834,  at  the  request  of  the  defend- 
ant, retained  and  employed  him,  he  then  being  a  surgeon,  to 
perform  a  certain  operation,  to  wit,  to  bleed  him  in  the  arm, 
for  reasonable  reward ;  that  the  defendant  accepted  such 
retainer  and  employment,  and  thereupon  it  became  his  duty 
to  perform  the  operation  in  a  careful,  skilful,  and  proper  man- 
ner ;  and  although  he  did,  by  a  certain  servant  of  his,  per- 
form the  operation,  yet  he,  the  defendant,  not  regarding,  &c., 
but  wrongfully  intending,  &c.,  did  not,  nor  would  perform 
the  operation  in  a  careful,  skilful,  and  proper  manner,  but 
wholly  refused  and  neglected  so  to  do ;  and,  on  the  contrary, 
by  his  said  servant  performed  the  operation  in  so  careless, 
unskilful,  negligent,  and  improper  a  manner,  that,  by  and 
through  the  mere  carelessness,  &c.,  of  the  defendant,  by  his 
said  servant,  the  arm  of  the  plaintiff  was  greatly  hurt, 
bruised,  wounded,  swelled,  and  discolored,  and  the  plaintiff 
lost  a  great,  unnecessary,  and  improper  quantity  of  blood,  and 
was  sick,  &c.,  and  suffered  great  pain,  &c.,  and  was  pre- 
vented from  attending  to  his  business,  and  was  obliged  to 
expend  .£30  in  endeavoring  to  get  cured. 

Plea.     Not  guilty. 

It  appeared  that,  about  nine  in  the  morning  of  the  24th 
of  June,  the  plaintiff,  who  was  a  whitesmith,  went  into  the 
shop  of  the  defendant,  who  was  a  surgeon  in  the  London 

1  7  Carr.  &  P.  81. 
19 


290  CIVIL  MALPEACTICE. 

Road,  and  asked  to  be  bled.  Two  of  the  defendant's  ap- 
prentices were  in  the  shop,  and  he  himself  was  engaged  in  a 
back  pari 01'  adjoining.  The  plaintiff  did  not  inquire  for  the 
defendant,  but  told  the  young  men  that  he  had  a  disease  in 
his  head  for  which  he  had  been  bled  before  and  had  found 
relief  from  it.  Upon  this,  after  a  lapse  of  two  or  three  min- 
utes, he  was  bled  by  the  senior  apprentice  in  the  presence  of 
the  other ;  and,  while  the  operation  was  going  on,  observing 
the  blood  flow  rather  more  rapidly  than  usual,  they  called  for 
the  defendant,  who  came  in  and  told  them  when  to  stop,  and 
himself  tied  up  the  plaintiff's  arm ;  and,  ascertaining  that 
he  had  some  distance  to  walk,  and  the  weather  being  hot, 
bandaged  it  rather  tightly  ;  and,  on  the  plaintiff's  complain- 
ing, told  him  that,  if  he  found  it  too  tight  when  he  got 
home,  he  might  loosen  it.  It  appeared  that  the  apprentice 
who  bled  the  plaintiff  had  often  bled  patients  before ;  he 
had  been  two  years  with  the  defendant,  and  previously  had 
been  with  surgeons  of  eminence  at  Brighton,  and  attended 
anatomical  lectures,  and  seen  hospital  practice.  The  bleed- 
ing took  place  in  what  is  called  the  basilic  vein,  where  it  ap- 
peared from  an  old  cicatrix  that  the  plaintiff  had  been  bled 
before.  Under  this  vein  there  is  an  artery,  and  one  of  two 
surgeons,  who  were  called  on  the  part  of  the  plaintiff,  stated 
it  was  improper  to  bleed  in  that  vein  ;  but  he  gave  no  other 
reason  for  his  statement  than  the  danger  there  might  be  of 
touching  a  tendon  if  the  vein  was  not  skilfully  rolled  over  it. 
He  said  that,  in  his  opinion,  the  appearances  described  would 
not  have  resulted  if  the  operation  had  not  been  unskilfully 
performed. 

On  the  part  of  the  defendant,  Mr.  Key,  Mr.  Callaway,  and 
Mr.  Samuel  Cooper  stated,  that  the  appearances  were  all 
consistent  with  the  skilful  and  proper  performance  of  the 
operation,  and,  even  supposing  that  the  filament  of  a  nerve 
had  been  injured,  it  was  an  accident  which  might  occur  to 
the  best  surgeon,  and  did  not  show  the  slightest  want  of 
skill.  One  of  the  surgeons  called  on  the  part  of  the  plain- 
tiff also  gave  similar  evidence.     The  appearances  described 


m  VENESECTION.  291 

were  considerable  swelling  and  discoloration  of  the  arm,  and 
some  witnesses  swore  that  the  plaintiff  was  confined  for  a 
month,  and  not  able  to  go  to  his  work  in  consequence. 

Talfourd^  Serjt.,  for  the  plaintiff,  contended  that  a  sur- 
geon was  not  only  to  bring  to  his  profession  a  competent  de- 
gree of  personal  skill,  but  also  to  avoid  introducing  into  his 
business  young  persons  not  of  competent  skill.  He  submit- 
ted that  it  was  very  doubtful  whether  the  operation  ought 
to  have  been  performed  at  all ;  and  that  the  defendant  ought 
not  to  be  exonerated  from  blame,  as  he  had  allowed  so  deli- 
cate an  operation  to  be  performed  by  a  person  who  had  not 
completed  his  education. 

Wilde^  Serjt.,  for  the  defendant.  I  admit  that  a  patient 
is  entitled  to  ordinary  skill  and  care ;  but  it  is  monstrous  to 
say  that  a  medical  man  is  to  insure  the  constitution  of  his 
patient  in  all  cases.  The  plaintiff  must  make  out  want  of 
skill,  and  he  has  failed  in  doing  so. 

TiNDAL,  C,  J.,  in  summing  up.  The  defendant  is  respon- 
sible for  the  act  of  his  apprentice  ;  therefore  the  question  is, 
whether  you  think  the  injury  which  the  plaintiff  has  sus- 
tained is  attributable  to  a  want  of  proper  skill  on  the  part  of 
the  young  man,  or  to  some  accident.  A  surgeon  does  not 
become  an  actual  insurer  ;  he  is  only  bound  to  display  suffi- 
cient skill  and  knowledge  of  his  profession.  If,  from  some 
accident,  or  some  variation  in  the  frame  of  a  particular  indi- 
vidual, an  injury  happens,  it  is  not  a  fault  in  the  medical  man. 
It  does  not  appear  that  the  plaintiff  consulted  the  defendant 
as  to  the  propriety  of  bleeding  him  ;  he  took  that  upon  him- 
self, and  only  required  the  manual  operation  to  be  performed. 
The  plaintiff  must  show  that  the  injury  was  attributable  to 
want  of  skill ;  you  are  not  to  infer  it.  If  there  were  no  in- 
dications in  the  plaintiff's  appearance  that  bleeding  would  be 
improj)er,  the  defendant  would  not  be  liable  for  the  bleeding 
not  effecting  the  same  result  as  at  other  times,  because  it 
might  depend  on  the  constitution  of  the  plaintiff.  His  lord- 
ship stated  the  substance  of  the  evidence,  and  said :  The  ques- 
tion is,  whether  you  think  the  plaintiff  has  proved  that  the 


292  CIVIL   MALPRACTICE. 

injury  resulted  from  the  inexperience  or  want  of  previous 
knowledge  on  the  part  of  the  defendant's  young  man ;  if 
you  do  not,  you  will  find  your  verdict  for  the  defendant ;  if 
you  do,  you  will  find  your  verdict  for  the  plaintiff,  and  give 
him  such  reasonable  damages  as  you  think  him  entitled  to 
under  all  the  circumstances.        Verdict  for  the  defendant.''^ 


INTERSTITIAL  ABSORPTION  EROM  INELAMMATORY   SOETEN- 
ING.    ALLEGED  TO  BE  FRACTURE  OE  NECK  OE  EEMUR. 

Haiee  V.  Reese.i 

CHARGE   OE   THE   COURT. 

"  Thayer,  J.  The  plaintiff  has  brought  this  action 
against  the  defendant.  Dr.  Reese,  for  alleged  malpractice  as 
a  physician  and  surgeon.  The  grounds  upon  which  he  alleges 
he  is  entitled  to  sustain  this  action  for  damages  are,  that  the 
defendant  treated  him  unskilfully  for  his  injuries,  and  that 
he  did  not  give  that  diligent  care  and  attention  to  his  case 
which  it  was  incumbent  on  him  to  extend  to  him,  and  which 
he  had  a  right  to  expect.  That  is  the  question  which  you 
are  to  determine  by  your  verdict. 

The  history  of  the  case  appears  from  the  evidence  which 
is  before  you  to  be  this  :  On  the  2d  of  February,  1869,  the 
plaintiff,  who  is  by  trade  a  house-painter,  was  engaged  in 
painting  the  outside  of  the  House  of  Refuge,  in  this  city, 
when  the  jack  upon  which  he  was  standing  accidentally  gave 
way  and  he  was  precipitated  to  the  ground,  a  distance  of 
twenty-eight  feet,  his  body  striking  violently  against  a  fence 
in  its  fall.  The  defendant,  who  is  the  attending  physician 
of  the  institution,  was  immediately  sent  for,  and  he  came 
promptly  to  his  assistance.  As  soon  as  he  arrived  he  pro- 
ceeded to  take  up  the  arteries  in  the  head  which  had  been 
cut  by  the  fall,  and  to  stanch  the  bleeding  of  his  wounds. 
1  7  Philadelphia  (Pa.),  138. 


IN  INTERSTITIAL  ABSORPTION.  293 

When  that  was  completed  he  proceeded  to  examine  the  plain- 
tiff's hip,  in  which  he  was  suffering  great  pain.  The  plain- 
tiff groaned  with  pain  under  the  examination,  and  the  doctor 
thereupon  advised  that  he  should  be  removed  at  once  to  his 
own  home,  where  he  could  be  better  provided  for,  and  where 
a  more  thorough  examination  could,  with  greater  facility  and 
less  pain  to  the  patient,  be  made.  At  the  special  request  of 
the  plaintiff  he  consented  to  attend  him,  and  went  in  ad- 
vance of  the  plaintiff  to  his  home,  in  a  distant  part  of  the 
city,  in  order  to  prepare  his  family  for  the  bad  news  which 
awaited  them,  and  to  make  proper  preparations  for  the  recep- 
tion of  the  patient.  When  the  latter  arrived  he  was  carried, 
by  the  doctor's  directions,  into  the  sitting  room  and  laid  care- 
fully upon  a  bed.  The  doctor  then  etherized  him  in  order  to 
enable  him  to  endure  the  examination  to  which  he  was  about 
to  subject  him.  He  then  proceeded  to  make  a  thorough  ex- 
amination of  the  injured  jjarts,  and,  contrary  to  his  own  ex- 
pectations, as  he  says,  found,  after  making  this  critical  exam- 
ination, that  there  was  neither  fracture  nor  dislocation  of  the 
bones.  After  administering  an  anodyne  to  him,  and  directing 
an  anodyne  liniment  for  the  hip,  he  left  him  for  the  night. 
The  next  day  he  visited  him  again  and  made  another  careful 
examination  of  the  hip,  according  to  the  doctor's  testimony, 
but  again  found  no  evidences  of  fracture  or  dislocation.  He 
prescribed  liniments  and  anodynes,  and  directed  him  to  be 
kept  in  a  quiet  condition.  The  doctor  continued  to  visit  him 
daily  for  a  considerable  time,  making  twenty-one  visits  in  all. 
On  the  24th  of  February,  about  three  weeks  after  the  acci- 
dent, at  Dr.  Reese's  suggestion,  Dr.  Agnew  was  called  in  to 
a  consultation.  He  came  and  made  a  thorough  examination 
of  the  injured  part.  He  resorted  to  every  means  known  to 
surgery  to  ascertain  if  there  had  been  a  fracture.  You  will 
recollect  the  details  of  that  examination  given  you  by  Dr. 
Agnew  himself.  The  patient  was  first  examined  in  a  recum- 
bent position.  The  parts  were  carefully  manipulated  and 
turned  about,  but  there  was  no  crepitation,  —  that  is,  no 
sound   of  grating  of  bones,  —  which  is  usually  detected  im- 


294  CIVIL  MALPRACTICE. 

mediately  by  the  practised  ear  of  a  skilful  surgeon  where  a 
fracture  has  occiu-red.  The  limbs  were  carefully  measured  and 
compared  with  each  other ;  measurements  of  various  kinds, 
and  in  different  directions,  were  made,  to  ascertain  whether 
the  injured  leg  had  undergone  any  shortening.  The  patient 
was  then  placed  in  an  erect  posture  and  again  examined. 
His  leg  was  swung  backward  and  forward.  In  short,  after 
subjecting  the  limb  to  all  the  tests  usually  applied  in  such 
cases.  Dr.  Agnew,  as  he  has  testified,  was  convinced  that 
there  was  neither  fracture  nor  dislocation.  Dr.  Agnew  has 
stated  in  his  testimony,  in  view  of  this  thorough  examination 
to  which  he  subjected  the  plaintiff,  that  if  there  then  existed 
a  fracture,  it  could  not  be  discovered  by  any  human  means. 
Dr.  Reese  made  his  last  visit  to  the  plaintiff'  on  the  10th  of 
May.  For  the  professional  service  which  he  rendered  he  has 
never  received  a  dollar.  On  or  about  the  6th  of  August  fol- 
lowing, the  plaintiff  called  upon  Dr.  Agnew  at  his  office. 
Dr.  Agnew  then  observed  that  there  had  been  some  shorten- 
ing of  the  leg.  When  asked  by  Dr.  Agnew  when  that 
shortening  had  commenced,  he  replied  that  '  it  was  after  he 
had  got  up  to  go  about  on  crutches.'  Dr.  Agnew  advised 
him  to  get  a  high-heeled  shoe,  and  to  dispense  with  the 
crutches.  He  then  went  away.  He  rewarded  Dr.  Agnew 
for  his  services  by  bringing  a  suit  against  him  also.  Subse- 
quently he  went  to  see  Dr.  Gross,  at  the  Jefferson  College 
clinic,  who  prescribed  an  ointment  for  his  leg  ;  whereupon  the 
plaintiff  accused  him  of  having  poisoned  him.  He  went  also 
to  see  Dr.  Duffie,  who  advised  him  to  throw  away  his  crutches 
and  to  get  a  high  heel  to  his  shoe.  While  Dr.  Reese  was 
attending  him  he  consulted  other  persons  without  informing 
him  of  it,  and  applied  to  his  leg  various  nostrums  which  they 
recommended.  He  now  charges  Dr.  Reese  with  the  shorten- 
ing of  his  leg,  and  seeks  to  make  him  responsible  for  it.  You 
are  to  decide  whether  his  charge  is  just  and  true  or  not. 

Gentlemen  of  the  jury,  —  Before  I  refer  to  the  evidence  in 
the  cause,  I  will  direct  your  attention  to  certain  principles  of 
law  which  are  applicable  to  such  investigations. 


IN  INTERSTITIAL  ABSORPTION.  295 

The  implied  contract  of  a  surgeon  or  a  physician  who  at- 
tends a  patient  is,  not  that  he  will  certainly  effect  a  cure,  but 
that  he  will  use  all  known  and  reasonable  means  to  accom- 
plish that  object,  and  that  he  will  attend  his  patient  carefully 
and  diligently.  His  relation  to  his  patient  implies  that  be 
possesses,  and  will  employ,  in  the  treatment  of  the  case, 
such  reasonable  skill  and  diligence  as  are  ordinarily  exercised 
in  his  profession  by  thoroughly  educated  surgeons  or  physi- 
cians ;  and,  in  judging  of  the  degree  of  skill  which  he  con- 
tracts to  bring  to  the  service  of  his  patient,  regard  is  to  be 
had  to  the  advanced  state  of  the  profession  at  the  time. 
The  defendant  in  this  case  was  bound  to  use  reasonable  skill 
and  diligence  to  effect  a  cure  ;  and  reasonable  skill  and  dili- 
gence means  such  skill  and  diligence  as  educated  and  faithful 
surgeons  or  physicians  ordinarily  employ. 

No  presumption  of  the  absence  of  proper  skill  and  atten- 
tion arises  from  the  mere  fact  that  the  patient  does  not  re- 
cover, or  that  a  complete  cure  is  not  effected.  God  forbid 
that  the  law  should  apply  any  rule  so  rigorous  and  unjust  as 
that  to  the  relation  and  responsibilities  arising  out  of  this 
noble  and  humane  profession  !  The  medical  man  who  is 
called  to  attend  a  patient  undertakes  to  possess  such  knowl- 
edge and  skill  as  are  usually  and  commonly  possessed  by 
educated  phj'sicians,  and  to  apply  that  skill  and  knowledge 
with  all  due  diligence  and  care  for  the  benefit  and  advantage 
of  the  patient.  If  his  performance  comes  up  to  that  stand- 
ard, he  has  discharged  his  duty  and  is  not  responsible  for 
results.  On  the  part  of  the  patient,  it  is  his  duty  to  conform 
to  the  necessary  prescriptions  and  treatment,  if  they  be  such 
as  a  surgeon  or  physician  of  ordinary  skill  and  care  would 
adopt  or  sanction  ;  and  if  he  will  not,  or  under  the  pressure 
of  pain  cannot,  the  surgeon  or  physician  is  not  responsible 
for  injury  resulting  therefrom. 

When  malpractice,  or  want  of  skill  or  proper  attention,  is 
charged  against  a  physician  or  surgeon,  the  burden  of  prov- 
ing it  lies  upon  the  person  who  alleges  it.  In  the  absence 
of  satisfactory  proof  to  establish  such  a  charge,  the  presump- 


296  CIVIL  MALPEACTICE. 

tion  is  that  he  was  competent  for  the  task  which  he  had  un- 
dertaken, and  did  his  duty  to  the  best  of  his  abihty.  This  is 
the  rule  of  common  sense,  and  the  rule  of  law  upon  this  sub- 
ject. The  burden  of  proof,  therefore,  in  this  case,  as  in  all 
similar  cases,  is  upon  the  plaintiff.  You  are  not  to  rush  to 
conclusions  detrimental  to  the  reputation  and  interests  of  the 
defendant  without  competent  proof.  You  are  to  decide  the 
case  by  the  evidence.  You  are  sworn  to  give  a  true  verdict 
according  to  the  evidence.  Your  consciences  must  be  satis- 
fied by  the  evidence  that  the  plaintiff's  case  is  proved,  before 
you  can  be  justified  in  finding  a  verdict  against  the  defend- 
ant. And  I  will  add,  that  it  is  your  duty  to  weigh  the  evi- 
dence carefully,  and  to  decide  the  cause  according  to  the 
weight  of  the  evidence. 

Having  thus  pointed  out  the  rules  of  law  which  are  appli- 
cable to  this  inquiry,  I  will  now  proceed  to  make  some  refer- 
ences to  the  evidence  which  has  been  given,  reminding  you, 
at  the  same  time,  that  you  are  the  exclusive  judges  of  the 
facts,  and  with  you  must  ultimately  rest  the  responsibility  of 
deciding  the  cause.  The  charge  made  by  the  plaintiff,  as  he 
has  attempted  to  maintain  it  by  the  evidence,  is  that  the  de- 
fendant mistook  the  nature  of  his  injury.  He  says  that  his 
thigh-bone  was  fractured,  whereas  the  defendant  assured  him 
that  it  was  not,  and  treated  him  as  if  it  were  not,  the  conse- 
quence of  which  was,  as  he  alleges,  the  shortening  of  his  leg. 
The  proof  upon  which  he  relies  to  show  that  there  was  a 
fracture  is,  in  the  first  place,  the  evidence  of  certain  wit- 
nesses ;  and,  in  the  second  place,  he  says  that  the  fracture  is 
proved  by  the  shortening  itself.  Now,  it  is  apparent  from 
the  testimony  of  all  the  surgeons  who  have  been  examined, 
—  as  well  the  plaintiff's  as  the  defendant's  witnesses,  —  that 
in  consequence  of  an  injury  such  as  the  plaintiff  received, 
shortening  of  the  limb  may  result  either  from  a  fracture  of 
the  bone,  or  from  what  is  technically  called  interstitial  ab- 
sorption^ —  that  is  to  say,  the  absorption  of  the  extremity 
or  neck  of  the  femur,  or  thigh-bone,  —  a  result  frequently 
arising  from  a  violent  contusion.     If  you  believe  the  leg  was 


IN  INTERSTITIAL  AE SORPTION.  297 

shortened,  then  it  will  be  proper  for  you  to  inquire  whether 
it  was  the  result  of  an  actual  fracture,  or  of  an  absorption 
taking  place  in  consequence  of  a  contusion  ;  because  you  will 
observe  that,  unless  there  was  a  fracture,  the  plaintiff's  alle- 
gation of  mistake  or  neglect  on  the  part  of  the  defendant  in 
not  ascertaining  that  fact  is  not  made  out.  Let  us,  there- 
fore, examine  the  evidence  upon  this  point.  The  plaintiff 
himself  says  in  his  testimony  very  positively  that  the  bone 
was  fractured.  Now  it  is  for  you  to  say  how  much  weight  is 
to  be  given  to  that  statement,  in  view  of  the  other  testimony 
in  the  case.  You  will  consider  whether  he  could  probably 
determine  that  point  with  as  much  certainty  as  the  surgeons 
who  professionally  examined  the  limb.  You  will  consider 
whether  his  assertion  upon  this  point  is  of  as  much  value  as 
the  testimony  of  the  surgical  experts  who  examined  him. 
To  me  it  appears  a  question  much  more  difficult  to  be  de- 
cided with  certainty  by  the  patient  himself,  than  by  those 
who,  from  long  experience  and  education,  are  accustomed  to 
ascertain  such  facts  by  the  scientific  tests  which  they  are 
accustomed  to  resort  to  in  order  to  determine  it.  But  the 
value  of  his  testimony  I  leave  entirely  to  you. 

The  first  witness  he  called"  upon  this  point,  to  sustain  his 
own  assertion,  was  Dr.  John  Hirst,  who  is  a  graduate  of  the 
College  of  Surgeons,  of  Edinburgh.  He  testified  that  he 
examined  the  plaintiff  about  two  years  after  the  accident 
x)ccurred.  He  told  him  that  he  could  do  nothing  for  him  ; 
that  he  had  no  doubt  that  his  case  had  been  treated  cor- 
rectly, from  the  character  of  the  gentleman  who  had  attended 
him.  He  casually  expressed  the  opinion,  he  says,  that  the 
leg  had  been  fractured  in  the  neck  of  the  thigh-bone,  and  he 
formed  that  opinion,  he  says,  from  the  shortening  of  the 
limb.  According  to  his  testimony  he  based  his  opinion  on 
that  circumstance  and  what  he  had  heard  of  the  history  of 
the  case ;  he  did  not  measure  the  limb.  He  further  said  that 
a  concussion  may  induce  disease  of  the  articulating  head  of 
the  thigh-bone,  resulting  in  interstitial  absorption  ;  and  that 
will  occasion  a  shortening  of  the  limb.      He  said  that  he 


298  CIVIL  MALPRACTICE. 

thought  the  shortening  was  owing  either  to  fracture  or  inter- 
stitial absorption.  As  a  general  rule,  the  limb  would  be  very- 
soon  shortened  by  a  fracture  after  the  injury  was  received, 
but  if  shortened  by  absorption  the  shortening  would  come  on 
gradually.  He  also  said  that  if  he  examined  a  patient  and 
found  that  there  was  neither  crepitation,  inversion  of  the  limb, 
nor  shortening,  he  could  not  say  there  had  been  a  fracture. 
Dr.  Hirst  does  not  appear,  by  the  evidence,  to  have  examined 
the  plaintiff  by  means  of  the  usual  scientific  tests  described 
by  the  other  surgeons.  He  looked  at  it  two  years  after  the 
accident  and  gave  a  casual  opinion,  as  he  himself  expresses 
it,  founded  upon  a  comparison,  by  the  eye,  of  one  leg  with 
the  other,  and  upon  what  he  had  heard  of  the  case.  That 
appears  to  have  been  all  the  examination  he  gave  it.  It  is 
for  you  to  settle  the  weight  and  value  of  his  testimony  on 
this  point. 

The  next  witness  called  by  the  plaintiff  was  Moses  Steven- 
son, who  says  he  graduated  in  medicine  in  1870,  after  study- 
ing two  years.  He  says  he  examined  the  plaintiff's  leg  last 
winter,  and  believes  that  it  had  been  fractured.  I  do  not 
consider  it  worth  while  to  dwell  upon  the  testimony  of  this 
witness.  You  will  recollect  the  exhibition  which  he  made 
upon  being  cross-examined,  saying,  among  other  things,  that 
'  the  head  of  the  femur  may  be  crepitated  by  absorption.'  In 
my  judgment  his  testimony  is  not  worth  considering,  and  was 
in  the  highest  degree  discreditable  to  himself.  I  dismiss  him, 
therefore,  without  further  comment. 

The  next  witness  called  by  the  plaintiff  was  Dr.  Joseph 
D.  Scoles,  whose  testimony  appeared  to  me  both  clear  and 
candid.  He  says  that  he  formed  the  opinion  that  the  hip- 
bone had  received  an  injury  which  occasioned  the  shortening 
of  the  limb  ;  that  this  shortening  may  have  been  caused 
either  by  fracture  or  absorption,  and  that  it  is  impossible  for 
him  to  say  which. 

I  have  now  given  the  substance  of  the  whole  of  the  plain- 
tiff's testimony  upon  this  subject  of  fracture  or  no  fracture. 
On  the  part  of  the  defendant,  Dr.  Reese  (the  defendant) 


IN  INTERSTITIAL  ABSOEPTION.  299 

testified  in  great  detail  to  the  nature  of  the  examination  to 
which  he  had  subjected  the  plaintiff  immediately  after  the 
happening  of  the  accident.  I  will  not  take  up  your  time  by 
going  over  it,  for  I  am  sure  you  will  recall  it.  And  after 
completing  that  examination,  which  appears  by  his  own 
statement  to  have  been  very  carefully  and  deliberately  made, 
he  came  to  the  conclusion  that  there  had.  been  neither  fracture 
nor  dislocation. 

Dr.  D.  H.  Agnew,  the  distinguished  professor  of  operative 
surgery  in  the  University  of  Pennsylvania,  testified  that  he 
examined  the  plaintift"'s  limb  about  three  weeks  after  the 
accident,  and  apjDlied  every  test  known  to  surgical  practice 
to  ascertain  whether  there  had  been  fracture,  and  was  clearly 
of  opinion  that  there  was  neither  fracture  nor  dislocation. 
You  will  remember  the  description  he  gave  you,  at  consider- 
able length,  of  that  examination,  and  of  the  various  meth- 
ods resorted  to  by  him  to  determine  the  fact.  He  said  that, 
if  there  was  a  fracture  at  that  time,  it  could  not  be  discov- 
ered, by  any  human  means.  He  says,  moreover,  after  listen- 
ing to  the  details  of  the  treatment  of  the  patient  by  Dr. 
Reese,  that  it  was  in  all  respects  skilful  and  proper. 

Dr.  Gross,  the  eminent  professor  of  surgery  in  Jefferson 
College,  and  a  gentleman  of  great  experience  in  the  profes- 
sion, testifies  that  he  examined  the  patient  at  tlie  close  of  a 
clinic,  and  came  to  the  conclusion  that  the  injury  to  the  leg 
was  the  result  of  severe  contusion.  He  further  says  that  if 
the  bone  had  been  fractured  the  shortening  of  the  limb 
would,  beyond  all  question,  have  taken  place  within  twelve 
or  fifteen  days  after  the  accident.  He  also  corroborated,  to 
the  fullest  extent,  the  opinion  of  Dr.  Agnew  in  regard  to  the 
skilful  and  judicious  character  of  the  treatment  given  to  the 
plaintiff  by  Dr.  Reese. 

Dr.  Duffie,  also  called  as  a  witness  by  the  defendant,  and 
having  also  examined  the  plaintiff  some  time  since,  was  dis- 
tinctly of  opinion  that  it  was  a  case  of  absorption  of  the 
thigh-bone,  a  result  which,  he  says,  no  remedies  known  to 
surgery  can  cure. 


300  CIVIL  MALPRACTICE. 

Dr.  John  H.  Brinton,  a  well  known  surgeon  of  long  and 
large  experience,  testified,  after  hearing  at  length  the  treat- 
ment to  which  the  plaintiff  had  been  subjected  by  the  de- 
fendant, that,  in  his  opinion,  it  was  perfectly  correct  and 
judicious,  and  said  he  knew  of  no  other  treatment  for  such  a 
case. 

The  testimony  of  Dr.  R.  J.  Levis  was  to  the  same  effect. 
He  says  that  the  treatment  was  skilful  and  proper.  All  the 
surgeons  who  were  examined  agree  that,  if  there  was  no 
fracture,  the  treatment  was  perfectly  proper ;  and  they  all 
agree  that  the  only  evidence  of  fracture  was  the  shorten- 
ing of  the  limb ;  and  that  shortening  ensues  with  equal  uni- 
formity from  absorption  —  the  consequence  of  contusion  — 
as  from  fracture,  the  only  difference  being  that,  in  the  former 
case,  it  comes  on  at  a  much  later  period  in  the  history  of  the 
case  than  in  the  latter.  You  have,  then,  on  the  one  side,  the 
positive  statement  of  the  plaintiff  and  the  opinion  of  Dr. 
Hirst,  founded  upon  an  examination  certainly  not  critical  in 
its  character,  made  two  years  after  the  accident,  and  upon 
what  he  had  heard  about  the  case.  You  have,  upon  the 
other,  the  opinions  of  Dr.  Agnew,  Dr.  Gross,  Dr.  Brinton, 
Dr.  Duffie,  Dr.  Packard,  Dr.  Levis,  and  Dr.  Reese,  the  de- 
fendant. 

You  have  also  the  important  fact  that  there  is  no  evidence 
that  any  shortening  took  place  for  a  considerable  period  after 
the  accident.  Dr.  Agnew  is  positive  that  there  was  no  short- 
ening when  he  first  examined  the  plaintiff,  about  three  weeks 
after  the  accident,  and  that  he  did  not  observe  that  it  had 
taken  place  until  the  plaintiff  came  to  his  office,  in  August, 
about  six  months  after  the  accident. 

You  ought  to  decide  the  case  according  to  the  weight  of 
the  evidence.  If  you  are  of  the  opinion  that  the  plaintiff's 
leg  was  not  fractured,  I  do  not  see  that  there  is  any  evidence 
that  the  case  was  not  properly  treated  by  Dr.  Reese.  I  have 
a  right  to  say,  and  I  conceive  it  to  be  my  duty  in  this  case 
to  say,  that  I  see  no  satisfactory  evidence  that  the  treatment 
of  Dr.  Reese  was  not,  in  all  respects,  skilful,  wise,  humane, 


IN  INTEESTITIAL  ABSORPTION.  301 

and  proper.     But  I   leave  all  the  evidence  to  you,  and  you 
will  decide  for  yourselves. 

If,  after  looking  over  the  whole  case  and  weighing  all  the 
evidence  and  applying  the  rules  of  law  regulating  his  re- 
sponsibility, to  which  I  referred  in  the  commencement  of  my 
charge,  you  conscientiously  come  to  the  conclusion  that  the 
defendant  was  guilty  of  any  negligence,  or  want  of  ordinary 
care  and  diligence  resulting  in  injury  to  the  plaintiff,  of 
course  you  will  not  hesitate  to  say  so  by  your  verdict.  But 
if,  on  the  contrary,  you  come  to  the  conclusion  that  the  plain- 
tiff's complaint  is  altogether  unfounded,  then  it  concerns  not 
only  the  interests  of  the  parties  in  the  present  cause,  and  not 
only  the  interests  of  public  justice,  but  also  the  established 
medical  fame  of  this  city  (a  fame  established  by  many  ex- 
amples of  men  great  and  distinguished  in  this  profession, 
who  have  here  lived,  and  labored,  and  died),  that  you  put 
an  end,  so  far  as  you  can,  to  experiments  by  unjustifiable 
lawsuits  against  skilful,  attentive,  and  humane  physicians. 

Verdict  for  the  defendant.'''' 

In  the  above  able  charge  the  court  reviews  the  whole 
ground.  He  does  what  is  too  frequently  left  to  the  jury  to 
do,  —  he  separates  the  expert  from  the  eminently  wo^i-expert 
testimony.  He  does  not  permit  that  "the  head  of  the  femur 
may  be  crepitated  by  absorption  "  to  go  to  the  jury  as  sound 
"  expert "  evidence,  but,  after  elucidating  the  scientific  por- 
tion of  the  defence,  he  gives  a  clear  expression  of  his  own 
convictions,  from  the  testimony  given,  and  sends  the  case, 
freed  from  false  issues,  to  the  jury. 

At  a  meeting  of  the  Clinical  Society  of  London,  Novem- 
ber 25,  1870,  Dr.  Durham,  Assistant  Surgeon,  Guy's  Hospi- 
tal, reported  a  case  of  gradual  interstitial  degeneration  and 
absorption  of  bony  tissue,  resulting  in  sjDontaneous  fracture 
of  the  femur  at  junction  of  middle  and  upper  thirds.  Three 
months  previous  the  patient  had  fallen  down  stairs  and  hurt 
his  thigh;  but  he  soon  felt  nothing  of  the  injury,  which  he 
thought  a  trifling  one.     Seven  weeks  later  he  began  to  have 


302  CIVIL  MALPEACTICE. 

aching  pain  in  the  thigh,  which  was  considered  and  treated 
as  neuralgic ;  and  when  this  had  lasted  three  weeks,  he  felt, 
on  going  to  bed  one  night,  a  sudden  increase  in  the  pain, 
which  quickl}'  became  agonizing.  Next  day  limb  was  swollen 
and  could  not  be  moved.  Swelling  and  pain  diminished  in 
a  few  days,  and  he  got  up  but  could  not  walk  about.  Some 
ten  days  after  Dr.  Durham  examined  patient  and  found  fe- 
mur fractured,  and  shortened  three  inches.  Under  treat- 
ment a  cure  followed  in  about  two  months.  —  Lancet,  De- 
cember, 1870. 

"  Dr.  Reese  was  able  to  present  numerous  pathological 
specimens  from  the  museums  of  Philadelphia  which  com- 
pletely illustrated  the  case.  He  was  also  able  to  appeal  to 
some  very  striking  cases  of  similar  injuries  (contusions)  re- 
corded in  vol.  xlvi.  Ed.  Med.  Jour.,  also  to  a  lecture  of  Mr. 
Paget,  in  Brit.  Med.  Jour.;  February  19, 1870,  bearing  upon 
the  cause  of  shortening  of  the  leg  as  the  result  of  direct 
injury  to  the  hip." 

The  following  case  is  presented  as  probably  being  of  the 
same  character  as  that  of  Dr.  Reese's. 

Mr.  John  Eads,  aged  sixty-two  years,  weighing  195  pounds, 
getting  into  his  buggy  jDlaced  his  left  foot  upon  the  hub,  and, 
just  as  his  right  foot  cleared  the  ground,  which  was  frozen 
hard,  the  horse  started  forward,  causing  him  to  fall  upon  his 
right  hip.  Limb  immediately  after  felt  benumbed,  and  he 
was  unable  to  use  -it.  When  assisted  up  he  became  quite 
faint.  He  was  seen  in  a  short  time  by  a  surgeon,  who 
thought  there  might  be  fracture  of  the  brim  of  acetabu- 
lum. There  was  no  shortening,  determined  by  measure- 
ment. Rest  and  stimulating  liniments  was  all  the  treatment 
used.  This  was  continued  two  months.  No  shortening  in 
this  time  to  be  noticed.  He  gradually  got  upon  crutches 
and  out  of  doors. 

Three  years  after  the  accident  he  is  obliged  to  use  the 
crutches  still,  and  it  is  found  that  there  is  three  fourths  of 
an  inch  shortening.  There  is  no  inversion  or  eversion  of 
toes.     The  muscles  of  the  limb  are  to  some  extent  atrophied 


IN  OPENING  AN  ABSCESS.  303 

from  disuse.  There  is  no  enlargement  about  the  trochanter ; 
if  anything,  there  is  slight  flattening.  No  anchylosis.  The 
case  is  one  from  which  surgeons,  ignorant  of  their  profession, 
might  argue  bad  practice  in  treatment. 


alleged  malpeactice  in  opening  an  abscess. 
Walsh  v.  Sayee.i 

This  was  an  action  instituted  to  recover  damages  in  the 
sum  of  $20,000. 

HiSTOEY.  In  April,  1868,  a  child  was  brought  to  the 
office  of  Dr.  Sayre  for  treatment  of  a  large  sw^elling  in  the 
left  gluteal  region. 

Drs.  Neftel,  of  New  York,  and  S.  W.  Gross,  of  Philadel- 
phia, were  present.  Dr.  Sayre  diagnosed  the  swelling  as  an 
abscess,  connected,  probably,  with  diseased  bone,  either  of 
the  sacrum,  ilium,  or  lumbar  vertebrae.  The  diagnosis  was 
called  in  questioti ;  when  an  exploring  trocar  was  introduced 
which  showed  the  presence  of  pus.  The  opening  made  by 
the  trocar  was  then  enlarged  "to  half  or  three  quarters  of  an 
inch,  when  there  immediately  escaped  more  than  a  pint  of 
pus,  floating  in  which  there  were  shreds  of  dead  cellular 
tissue,  one  so  large  as  to  require  enlarging  the  wound  some- 
what. The  mother  supposed  this  was  a  portion  of  the  child's 
flesh  that  had  been  cut  off  and  became  very  much  excited,  so 
that  child  was  dressed  with  difficulty. 

She  was  requested  to  return  in  the  morning  that  the  cause 
of  the  abscess  might  be  learned  and  suitable  treatment  di- 
rected. This  she  promised  to  do,  but  Dr.  Sayre  heard  no 
more  of  the  case  till  he  was  notified  to  defend  himself  against 
a  charge  of  malpractice.  It  appears  in  the  evidence  that, 
subsequent  to  the  operation,  the  patient  was  submitted  to  the 
examination  of  two  well-known  New  York  surgeons,  who, 
too  hastily,  came  to  the  conclusion  that  the  hip-joint  had  been 

1  Alleged  Malpractice  Suit,  Walsh  v.  Sayre,  pub.  by  Geo.  H.  Shaw  «Sb  Co., 
New  York,  1870. 


304  CIVIL   MALPRACTICE. 

punctured,  and  so  expressed  themselves  to  the  friends  of  the 
patient. 

There  appears  in  connection  with  the  prosecution  another 
party  whom  it  would  scarcely  be  necessary  to  mention  if  it 
was  not  for  the  purpose  of  showing  what  means  are  frequently 
resorted  to  for  the  purpose  of  bolstering  up  such  suits,  and 
it  is  well  his  evidence  did  not  come  before  an  ordinary  petit 
jury,  else  his  combination  of  ignorance  and  effrontery  might 
have  been  taken  for  testimony  of  the  highest  order.  Here 
the  "  abused  witness  "  would  have  been  an  arm  of  strength 
to  the  plaintiff.^ 

That  the  charge  was  false,  the  child,  with  the  cicatrix  of 
the  operation  and  the  condition  of  the  joint,  at  that  time 
existing,  determined  by  medical  witnesses,  who  ivere  "  ex- 
perts," would  be  the  strongest  evidence  the  defendant  could 
bring  forward,  and  for  this  purpose  he  asked  the  court  that 
a  personal  inspection  be  accorded  him  and  other  qualified 
surgeons.  This  "  personal  inspection  "  was  objected  to  by 
the  attorney  for  the  plaintiff,  as  a  "personal  trespass,"  and 
would  consent  to  nothing  but  an  "  oral  examination."  The 
court  sustained  the  objection,  on  the  ground  that  "  there  was 
no  precedent  allowing  personal  examination  previous  to  the 
trial  of  the  cause."  Upon  petition,  "  the  equity  side  of  the 
court  "  recognized  that  there  were  other  rights  existing  at 
the  same  time,  side  by  side  with  those  under  the  ordinary 
rules  of  law,  and  ordered  that  such  an  examination  be  made, 
thus  establishing  a  "  precedent "  against  injustice  to  surgeons 
in  such  suits. 

Opinion  of  the  court  by 

Jones,  J.  "  The  question  whether  a  surgical  operation 
has  been  unskilfully  performed  or  not  is  one  of  science,  and 
is  to  be  determined  by  the  testimony  of  skilful  surgeons  as 
to  their  opinion,  founded  either  wholly  on  an  examination  of 
the  part  operated  upon,  or  partly  on  such  examination  and 
partly  on  information  derived  from  the  patient ;  or  partly  on 
such  examination,  partly  on  such  information,  and  partly  on 

1  Referring  to  one  "  Dr."  Vaughan,  whose  testimony  is  so  absurd  it  is  left  out 
of  abstract  of  evidence. 


IN  OPENING  AN  ABSCESS.  305 

facts  conceded  or  proved  at  the  trial ;  or  partly  on  sucli  ex- 
amination and  partly  on  facts  conceded  or  proved  at  the 
trial. 

The  present  action  is  brought  on  the  faith  of  the  expressed 
opinion  of  surgeons  that  the  operation  was  unskilfully  per- 
formed. This  opinion  is  founded  on  the  examination  of  the 
part  operated  on,  and  the  natural  presumption  arising  from 
the  circumstances  is,  that  it  is  also  founded  in  part  on  state- 
ments made  by  the  patient  and  her  parents.  To  what  ex- 
tent, if  at  all,  the  judgment  of  these  surgeons  in  forming 
their  opinions  was  influenced  by  a  bias  created  unconsciously 
to  themselves  by  such  statements,  cannot  now  be  determined. 
That  must  be  left  for  the  trial.  It  is,  however,  fair  to  assume, 
on  this  motion,  the  possibility  of  the  judgment  having  been 
swerved  by  such  bias. 

As  the  determination  of  the  action  depends  on  the  judg- 
ment of  skilled  surgeons,  the  defendant  will  prosecute  his 
defence  under  serious,  if  not  disastrous,  disadvantages  if  this 
motion  be  denied.  For,  in  that  event,  he  will  have  to  com- 
bat the  testimony^  of  those  surgeons  who  have  already  formed 
their  opinions  adverse  to  him,  possibly  under  the  influence  of 
an  unconscious  bias,  and  who  have  not  only  so  formed  it  but 
expressed  it,  whereby,  in  the  language  of  an  eminent  writer, 
'  the  expressed  opinion  has  become  as  a  fact  to  them  who 
expressed  it '  (the  meaning  of  which  is,  that  the  mind  of 
one  who  has  expressed  an  opinion  naturally  exerts  its  utmost 
power  and  resources  to  sustain  the  opinion  and  refute  all  ob- 
jections urged  against  it),  by  his  own  testimony  alone,  and 
that  of  his  assistants  present  when  the  operation  was  per- 
formed, upon  which  testimony  the  usual  criticism  will,  un- 
doubtedly, be  passed,  viz. :  As  to  himself,  that  he  is  a  party 
in  interest  swearing  to  relieve  himself  from  pecuniary  respon- 
sibility and  to  preserve  his  reputation  ;  and  as  to  his  assistants, 
that  they  are  not  sufficiently  skilled  to  have  their  testimony 
weigh  against  the  plaintiff's  witnesses. 

There  is  no  just  reason  why  the  defendant  should  be  suf- 
fered to  remain  under  this  disadvantage  when  it  can  be  easily 

20 


306  CIVIL   MALPEACTICE, 

avoided  by  a  resort  to  the  same  means  by  which  it  was  cre- 
ated. 

While  cases  may  occur  where  such  ignorance  or  gross  neg- 
lect is  displayed  that  all  competent  surgeons  would  unite  in 
condemning  the  operator,  yet,  in  the  present  advanced  state 
of  surgical  science,  cases  frequently  happen  where  surgeons 
of  the  greatest  skill  will  differ  with  each  other  in  their  diag- 
nosis of  the  nature  and  character  of  the  difficulty  to  be  rem- 
edied, in  their  views  as  to  whether  an  operation  would  pro- 
duce a  cure ;  as  to  whether  it  would  be  of  some  benefit  to 
the  patient,  although  not  a  radical  cure ;  as  to  whether  the 
amount  of  benefit  to  be  gained  would  justify  the  perform- 
ance of  an  operation  ;  as  to  whether  the  operation  could  be 
performed  at  all  without  destruction  of  life ;  and,  lastly,  as 
to  the  best  mode  of  performing  the  operation. 

Of  course  it  cannot  now  be  ascertained  to  which  class  this 
case  will  ultimately  be  found  to  belong  ;  but  on  this  motion, 
nothing  appearing  to  the  contrary,  it  must  be  assumed  that 
the  defendant  has  a  fair  prospect  of  succeeding  in  his  de- 
fence, which  cannot  be  if  the  action  falls  in  the  first  class. 

In  a  case,  then,  where  skilled  surgeons  may  honestly  differ 
in  their  views,  it  is  not  proper  that  the  cause  should  be  left 
to  be  determined  on  the  evidence  of  two  or  three  surgeons 
selected  by  the  plaintiff  out  of  the  whole  body  of  surgeons, 
perhaps  because  their  views  are  adverse  to  the  defendant's ; 
but  it  is  eminently  proper  that  defendant  should  have  the 
benefit  of  the  testimony  of  one  or  two  surgeons  of  his  own 
selection,  and  that  these  surgeons  should  have  the  requisite 
means  of  forming  a  correct  judgment,  one  of  which  is  an 
examination  of  the  affected  part. 

True,  the  plaintiff's  witnesses  may  on  the  trial  be  exam- 
ined as  to  the  facts  on  which  they  formed  their  opinion,  and 
may  be  called  on  to  give  a  description  of  the  part  operated 
on  ;  and  it  is  suggested  that,  upon  the  evidence  thus  given, 
any  number  of  surgeons  whom  the  defendant  pleases  to  call 
may  found  opinions.  I  have,  however,  had  sufficient  expe- 
rience in  the  trial  of  causes  to  know  that  witnesses,  when 


EST  OPENING  AN  ABSCESS.  307 

giving  a  description,  frequently  honestly  differ  in  material 
points. 

This  occurs  sometimes  by  one  fact  or  circumstance  arrest- 
ing the  attention  of  one,  while  it  escapes  that  of  another ; 
sometimes  by  an  inaccurate  measurement  of  distances,  either 
by  the  eye  or  instrument,  more  frequently,  however,  by  the 
eye,  and  sometimes  from  a  forgetfulness  of  some  facts  or 
circumstances,  which] forgetfulness  frequently  arises  in  conse- 
quence of  the  facts  or  circumstances  so  forgotten,  not  at  the 
time  of  their  occurrence  striking  the  mind  of  the  witness  as 
immaterial,  and,  therefore,  making  no  impression  on  his 
memory,  although  they  are,  in  fact,  most  material. 

The  evidence  of  the  plaintiff's  witnesses  will  be  open  to 
all  these  defects,  while  that  of  surgeons  selected  by  the  de- 
fendant, who  have  prosecuted  their  examination  with  light 
afforded  by  suggestions  offered  by  him  as  to  the  line  of  ex- 
amination proper  to  be  pursued,  will  (although  it  may  in 
itself  be  liable  to  similar  defects)  bring  forth  all  facts  and 
circumstances  which  exist  and  are  deemed  material  by  them 
or  by  the  defendant.  Thus,  each  party  having  an  opportu- 
nity to  investigate  and  ascertain  as  to  existence  of  facts  and 
circumstances  deemed  by  each-  to  be  material,  every  fact  and 
circumstance  bearing  in  the  least  on  the  subject  will  be  as- 
certained and  spread  forth  in  the  evidence,  whereby  other 
medical  witnesses  will  be  the  better  enabled  to  form  a  correct 
judgment,  and  the  jury  be  the  better  enabled  to  arrive  at  the 
truth. 

If  the  court  has  power  on  this  application  to  compel  a 
discovery  of  the  character  of  the  one  sought  for,  this  is  a 
proper  case  in  which  to  exercise  it. 

Courts  are  instituted  for  the  purpose  of  deciding  disputes 
between  litigants.  To  do  this  they  must  determine  the  truth 
of  such  material  questions  of  fact  as  are  in  controversy.  In 
the  performance  of  this  duty  certain  rules  of  evidence  were 
established,  as  being  the  best  that,  without  infringing  on 
public  policy,  could  be  devised  for  the  ascertainment  of 
truth.     It  was,  however,   considered  that  individual  should 


308  CIVIL  MALPKACTICE. 

yield  to  public  benefit.  Therefore  no  rules  of  evidence,  con- 
trary to  the  interest  of  the  public  at  large,  could  be  adopted, 
although  beneficial  to  individual  litigants. 

Among  the  rules  thus  established  were  those  that  exclude 
a  party  from  being  a  witness  in  his  own  favor,  and  also  a 
person  pecuniarily  interested  in  the  result  of  a  litigation, 
from  being  a  witness  on  behalf  of  the  side  on  which  he  was 
so  interested. 

Two  reasons  were  assigned  for  these  rules  :  the  one,  dan- 
ger of  prejudice  to  the  opposite  party,  by  the  introduction  of 
false  testimony  by  witnesses  biased  by  such  interest ;  the 
other,  danger  to  public  morals,  by  offering  an  inducement  to 
perjury  and  falsification  of  books  and  papers.  Both  these 
reasons  spring  from  the  interest  of  the  party  or  witness  who 
is  offered  as  a  witness. 

There  was  a  further  rule  which  forbade  a  party  to  an  action 
from  being  examined  as  a  witness  at  the  instance  and  in  be- 
half of  his  adversary ;  and,  as  an  incident  of  this  further 
rule,  a  party  was  not  allowed  to  obtain  either  an  inspection 
before  trial,  or  the  production  at  the  trial,  of  the  books, 
papers,  or  documents  of  his  adversary. 

This  last  rule  is  sometimes  said  to  be  founded  on  a  general 
principle  of  law  that  no  man  shall  be  compelled  to  give  evi- 
dence against  himself;  but  this  principle  is  itself  deduced 
from  the  same  doctrine  ujjon  which  the  first  two  rules  rest, 
since  it  is  evident  that  bias  and  temptation  to  commit  per- 
jury and  falsify  is  as  strong  to  one  who  is  compelled  to  give 
evidence  against  himself  as  it  is  to  one  who  voluntarily  testi- 
fies in  his  own  favor. 

These  rules  were  as  ancient,  as  well  settled,  and  as  firmly 
established  as  any  of  the  principles  of  the  common  law. 

But  in  course  of  time  the  last  of  these  rules  was  found  to 
be  such  a  drag  on  the  ascertainment  of  truth  in  judicial  in- 
vestigations, as,  in  civil  actions,  to  overbalance  the  objection 
to  such  compulsory  examination  and  production,  arising  from 
apprehended  danger  to  the  public  morals,  and  it  was  consid- 
ered that,  so  far  as  prejudice  to  the  party  desiring  the  exam- 


IN  OPENING  AN  ABSCESS.  309 

ination  of  his  adversary  was  involved,  it  was  a  matter  for  his 
own  consideration,  and  if  he  chose  to  subject  himself  to  that 
prejudice,  it  was  not  for  the  court  to  interfere. 

The  country  was  ripe  for  a  change. 

The  judges  of  the  courts  of  common  law,  however,  deriv- 
ing their  power  from  and  proceeding  according  to  the  course 
and  principles  of  the  common  law,  found  themselves  con- 
strained to  hold  that  they  had  no  power  or  authority  to  set 
at  naught,  out  of  their  own  heads,  by  judicial  decision,  the 
well  settled  principles  of  the  common  law,  above  referred  to, 
and,  therefore,  to  hold  that  they  had  no  power  to  compel  the 
examination  of,  or  the  production  of,  his  books,  papers,  and 
documents,  by  one  party,  at  the  instance  and  in  behalf  of 
the  other. 

This  want  of  power  became  an  acknowledged  defect  in  the 
administration  of  justice  by  courts  of  common  law.  Black. 
Com.  vol.  iii.  pp.  381,  382. 

In  looking  around  to  find  the  means  to  obviate  this  defect 
attention  was  naturally  directed  to  the  Court  of  Chancery, 
which,  in  the  causes  whereof  it  then  took  cognizance,  pro- 
ceeded, according  to  the  form  of  the  civil  law,  upon  the  ex- 
amination and  oath  of  the  parties,  and  which  had  withstood 
an  attack  made  upon  it  by  the  Commons,  for  so  proceeding 
against  this  form,  and  in  subversion  of  the  common  law. 
Black.  Com,  vol.  iii.  p.  52.  And  it  was  conjectured  that 
that  court,  which  had  already  interfered  to  mitigate  the  se- 
verity, or  supply  the  defects  in  judgments  at  law,  on  the 
ground  that  it  was  against  conscience  to  allow  them  to  be 
enforced  as  originally  rendered,  would,  on  the  same  ground 
(it  not  being  restrained  by  the  above  referred  to  princi- 
ples of  the  common  law),  compel  a  party  to  an  action  at 
law  to  make  discovery  of  such  matters  as  were  necessary 
to  be  ascertained,  to  enable  the  court  of  common  law  to 
determine  the  action  according  to  the  truth  and  justice  of 
the  case,  since  to  conceal  them  would  be  contrary  to  con- 
science. 

The  experiment  was  tried  and  was  successful. 


310  CIVIL  MALPRACTICE. 

It  thus  appears  that  the  necessity  of  resortmg  to  a  Court 
of  Chancery  to  obviate  the  defect  in  question,  instead  of  hav- 
ing it  remedied  by  the  courts  of  law  themselves,  arose  from 
the  obstacle  presented  by  the  above  referred  to  principles  of 
the  common  law,  and  from  that  alone.  But  for  these  prin- 
ciples courts  of  common  law,  by  their  usual  and  ordinary 
process  and  proceeding,  viz.,  by  subpoena  and  rules  of  court, 
both  enforcible  by  attachment,  —  could  have  met  the  re- 
quirements of  the  age  and  supplied  the  defect.  By  subpoena 
they  could  have  compelled  the  party  to  appear  before  the 
jury  and  there  disclose  those  facts  which  were  locked  up  in 
his  breast,  and  by  the  same  process  could  have  required  him 
to  produce  on  the  trial  his  books,  &c.,  and  by  rule  of  court 
(made  upon  parties  over  whose  persons  they  had  acquired 
jurisdiction,  in  an  action  of  the  subject  matter  of  which 
they  had  jurisdiction),  could  compel  him,  before  trial,  to 
submit  to  an  examination,  and  also  to  produce  his  books,  &c. 

If,  then,  these  principles  of  the  common  law  have  been 
abrogated  by  statute,  courts  of  common  law,  by  virtue  of 
their  preexisting  and  still  existing  common  law  powers,  have 
full  authority  to  compel  a  discovery  upon  the  same  princi- 
ples, and  to  as  full  an  extent,  and  with  as  much  complete- 
ness as  the  Court  of  Chancery  was  accustomed  to  do. 

Of  course,  in  exercising  the  authority,  courts  of  common 
law  would  look  to  the  former  decisions  and  principles  of  the 
Court  of  Chancery  and  be  guided  by  them,  except  where 
they  were  so  manifestly  unjust,  unreasonable,  or  absurd  as  to 
justify  their  denomination  as  not  law. 

This  presents  two  questions  :  — 

First.  Have  the  above  referred  to  principles  of  the  com- 
mon law  been  abrogated  ? 

Second.  Do  the  principles  on  which  the  Court  of  Chancery 
proceeded,  in  compelling  a  discovery,  apply  to  and  warrant 
the  compulsion  of  a  discovery  of  the  nature  now  asked 
for  ? 

If  both  these  questions  are  answered  in  the  affirmative, 
the  power  of  the  court  to  grant  this  motion  is  established. 


IN  OPENING  AN  ABSCESS.  311 

The  Legislature  of  the  State  of  New  York  has  enacted 
that,  in  civil  actions,  a  party  to  the  action  may  be  examined 
as  a  witness,  either  in  his  own  behalf,  or  at  the  instance  and 
on  behalf  of  the  adverse  party ;  and  also,  that  no  witness 
shall  be  excluded  on  account  of  interest. 

These  enactments  abrogate  (so  far  as  civil  actions  are  con- 
cerned) the  common  law  principles  that  a  party  to  an  action, 
or  a  person  interested  in  the  event,  shall  not  be  permitted  to 
give  evidence  in  favor  of  himself,  and  that  no  man  shall  be 
compelled  to  give  evidence  against  himself. 

It  may  be  urged  that,  as  the  enactment  which  abrogates 
these  principles  provides  for  discovery  by  the  oral  examina- 
tion of  a  party,  and  by  the  compulsory  production  of  his 
books,  papers,  and  documents,  it  excludes  all  other  dis- 
covery. 

If  the  principles  abolished  by  statute  are  ones  from  which 
a  court  derives  authority  to  exercise  certain  functions,  it 
would  necessarily  follow  that  the  abolition  of  those  principles 
abolished  the  authority,  and  the  only  authority  to  act  would 
be  such  as  the  statute  gave. 

But  when  the  principles  thus  abolished  had  theretofore 
simply  operated  in  restraint  of  the  ordinary  powers  and  pro- 
cedure of  a  court  (which  is  the  case  here,  as  above  reasoned), 
then  abolition  simply  removes  such  restraint,  and  leaves,  the 
court  to  unfettered  action,  except  in  so  far  as  it  is  curbed  by 
provisions  of  the  statute. 

Thus,  then,  so  far  as  discovery  by  oral  examination  and 
production  of  books,  papers,  and  documents  are  concerned, 
the  provisions  of  the  statute  are  to  be  followed.  But  there 
is  no  prohibition  against  the  compelling  of  any  other  discov- 
ery which  may  be  conformable  to  the  principle  of  the  former 
practice  of  the  Court  of  Chancery. 

True,  the  Court  of  Chancery  has  been  abolished,  and  it 
is  enacted  that  no  bill  to  obtain  discovery  under  oath  in  aid 
of  the  prosecution  or  defence  of  another  action  shall  be  al- 
lowed ;  but  the  principles  of  equity  jurisprudence  are  still  in 
force. 


312  CIVIL   MALPRACTICE. 

Courts  of  equity,  in  compelling  discovery,  proceeded  on 
the  principle  that  it  was  against  conscience  that  a  party  to  a 
litigation  having  knowledge,  or  the  means  by  which  knowl- 
edge could  be  obtained,  of  facts  material  to  the  litigation, 
should  obtain  an  advantage  to  himself  to  the  sacrifice  of  the 
development  of  truth,  and  consequent  working  of  injustice, 
by  withholding  and  concealing  such  knowledge  and  means. 

Upon  this  principle  a  discovery  of  books,  papers,  and  docu- 
ments is  ordered. 

The  principle  clearly  covers  and  authorizes  the  compulsory 
discovery,  in  a  proper  case,  of  things  or  substances  other 
than  books,  papers,  &c. 

It  can  readily  be  perceived  that,  although  the  cases  would 
be  rare  where  the  discovery  of  any  thing  or  substance  other 
than  books,  &c.,  would  be  required  or  proper  to  be  ordered, 
yet  cases  sometimes  do  occur  (and  this  is  one)  where  such 
discovery  is  both  requisite  and  proper. 

I  am  aware  there  is  no  recorded  case  of  an  application  for 
any  such  discovery  having  been  granted  ;  but  at  the  same 
time,  there  is  no  recorded  case  of  any  such  application  hav- 
ing been  denied.  It  is  probable  no  such  application  was 
ever  made.  The  reason  why  it  never  was  cannot  be  known, 
but  many  may  be  conjectured.  Among  them,  that  people 
are  always  timorous  of  taking  the  initiative,  especially  if  the 
step  is  likely  to  subject  them  to  large  expense,  as  a  suit  in 
chancery  would ;  therefore,  a  case  of  urgent,  almost  abso- 
lute, necessity  is  requisite  to  set  them  in  motion.  It  is 
probable  that  no  case  of  sufficient  urgency  to  overcome  this 
timorousness  occurred.  Again  :  at  the  time  of  the  commence- 
ment of  the  action  at  law,  the  subject  of  which  inspection 
is  desired  may  either  have  been  lost,  destroyed,  used  up,  or 
passed  out  of  the  control  of  the  party,  or  have  become  so 
changed  by  natural  or  artificial  causes,  as  that  an  inspection 
would  be  of  no  benefit.  Again :  as  a  suit  in  chancery  was 
of  considerable  duration,  the  subject  would,  in  all  probabil- 
ity, have  become  so  changed  from  natural  causes  that  an 
inspection,  when  ordered,  would  be  of  no  avail.      Again  :  in 


IN  OPENING  AN  ABSCESS.  313 

a  large  proportion  of  cases,  it  may  have  been  considered  that 
the  benefit  to  be  derived  would  not  be  adequate  to  the  ex- 
pense. 

A  motion  similar  to  the  present  obviates  all  these  objec- 
tions, except  the  second  ;  for  the  principle  being  now  estab- 
lished, it  will  require^  but  a  few  days  to  adjudicate  on  any 
particular  motion,  and  the  expense  is  but  trifling. 

Nor  have  I  overlooked  the  fact  that  the  Court  of  Chancery 
established  many  rules  for  its  guidance  in  granting  and  re- 
fusing a  discovery  asked  for ;  but  none  of  these  rules  are  an- 
tagonistic to  granting  this  motion. 

The  fact  that  the  discovery  asked  is  a  portion  of  the  body, 
at  first  disposes  the  mind  to  regard  it  unfavorably,  on  the 
ground  of  delicacy.  But  it  is  not  the  first  case  in  which 
such  an  examination  has  been  had  ;  as  witness.  Cases  of 
Mayhem  (Black.  Com.  vol.  iii.  p.  383)  ;  Cases  of  Divorce 
for  Impotency  (5  Paige  Rep.  554  ;  Beck's  Med.  Juris,  vol. 
i.  pp  116  to  125)  ;  Cases  of  Alleged  Pregnancy  (Beck  Med. 
Juris,  pp  204,  205). 

Upon  an  examination,  conducted  under  the  authority  of 
the  court,  there  can  be  no  undue  exposure. 

I  conclude  that  the  court  has  the  power  on  this  application 
to  order  an  examination,  and  that  this  is  a  proper  case  in 
which  to  exercise  it.  Motion  granted^ 

Upon  which  it  was  ordered  that  Prof.  F.  H.  Hamilton,  M. 
D.,  Ernest  Krackowizer,  M.  D.,  and  Wm.  H.  Van  Buren,  M. 
D.,  should  make  such  personal  surgical  examination,  under 
the  direction  of  John  J.  Townsend,  Esqr.,  counsellor  at  law, 
as  referee,  all  proceedings  on  the  part  of  the  plaintiff  being 
stayed  till  such  examination  was  submitted  to.  The  plain- 
tiff was  to  attend  on  such  examination  at  least  three  times,  if 
in  the  judgment  of  the  referee  such  attendance  was  deemed 
necessary'-. 

The  following  is  a  copy  of  the  report  of  the  experts  ap- 
pointed by  the  court :  — 


314  CIVIL  MALPRACTICE. 

"New  York,  Nov.  19,  1868. 

By  order  of  Judge  Joues,  of  tlie  Superior  Court,  we  have 
this  day  examined  the  person  of  Margaret  Sarah  Walsh,  a 
girl  between  seven  and  eight  years  of  age,  who,  through  her 
father  as  guardian,  has  charged  Dr.  Lewis  A.  vSayre  with  hav 
ing  punctured  her  left  hip-joint,  letting  out  its  synovial  fluid, 
producing  a  disease  of  the  same,  and  thereby  disabling  her 
for  life. 

The  girl  was  in  a  tolerably  good  condition,  walked  well 
without  limping,  both  feet  being  naturally  on  the  floor  with- 
out any  distortion  of  the  body. 

We  then  removed  her  clothing,  and,  laying  her  on  a  sofa 
on  her  back  ....  the  limbs  could  be  extended  to  their  full 
length,  so  that  the  thighs  and  calves  of  each  leg  touched  the 
sofa  without  any  tilting  of  the  pelvis.  The  two  limbs  were 
then  very  carefully  measured  by  each  of  us,  and  were  found 
to  be  of  exactly  the  same  length  ;  viz.,  20f  inches. 

The  right  hand  limb  could  be  flexed  so  as  to  bring  the 
knee  to  the  chin  ;  the  left  one  could  not  be  flexed  so  freely, 
but  could  be  brought  to  an  acute  angle  with  the  pelvis.  Ro- 
tation, abduction,  and  adduction  were  free,  and  without  any 
pain  whatever  ;  concussion  upon  the  knee,  or  over  the  tro- 
chanter major,  gave  no  evidence  of  pain.  Passing  the  fin- 
gers firmly  into  the  iliac  fossa  of  both  sides,  no  swelling 
could  with  firm  pressure  be  detected,  or  pain  produced. 
There  was  a  small,  dimpled-like  depression  above  and  behind 
the  trochanter  major,  on  the  gluteal  muscles,  which  the  fa- 
ther stated  was  the  scar  which  followed  Dr.  Sayre's  opera- 
tion. Dr.  Sayre  also  testified  that  this  was  the  place  where 
he  punctured  the  abscess  at  the  time  he  first  saw  the  patient, 
and  we  are  fully  convinced,  from  the  position  of  the  cicatrix, 
and  the  condition  of  the  hip-joint,  that  it  was  not  punctured 
at  the  time  of  the  operation  performed  by  Dr.  Sayre,  as 
charged  in  the  complaint.  There  was  no  deviation  or  ten- 
derness of  the  entire  spinal  column.  There  was  an  open 
ulcer  on  the  outer  and  posterior  portion  of  the  thigh,  about 
four  inches  below  the  hip-joint,  and  another  near  the  sacro- 


EN  OPENING  AN  ABSCESS.  316 

iliac  junction,  tlie  edges  of  which  were  inflamed ;  and  there 
was  considerable  inflammation  and  infiltration  in  the  cellular 
tissue  around  them,  which  probably  was  the  obstruction  to 
the  perfectly  free  flexion  and  adduction  of  the  thigh  on  that 
side. 

There  was  considerable  pain  on  pressure,  and  fulness  over 
the  sacro-iliac  junction,  and  it  is  our  opinion  that  this  was 
the  normal  seat  of  the  disease,  and  that  the  coxo-femoral  ar- 
ticulation was  in  a  perfectly  normal  condition,  as  it  is  at 
present. 

(Signed)  Wm.  H.  Van  Buren,  M.  D. 

Frank  H.  Hamilton,  M.  D. 
Ernest  Krackowizer,  M.  D." 

In  a  letter  to  Dr.  Sayre,  Dr.  S.  W.  Gross,  of  Philadelphia, 
who  was  present  at  the  operation,  says :  — 

"  There  was  not  the  slightest  evidence  of  hip  disease 

A  swelling  was  detected  in  the  left  gluteal  region,  about  the 
diagnosis  of  which  there  was  some  doubt.  It  was  said,  on 
the  one  hand,  to  be  a  fatty  tumor.  There  was  an  obscure 
sense  of  fluctuation,  and  I  pronounced  it  a  cyst  of  some  kind, 
probably  a  chronic  abscess.  To  clear  up  the  diagnosis  you 
introduced  a  small  exploring  instrument.  The  point  moved 
freely  in  a  cavity,  but  nothing  more  than  a  little  blood,  at 
first,  passed  from  the  canula.  On  moving  the  latter,  how- 
ever, about  and  making  pressure,  pus  made  its  appearance. 
You  then  punctured  the  abscess  with  your  bistoury,  making 
an  incision  about  eight  lines  long,  the  pus  spurted  out  in  a 
full  stream  upon  your  office  floor.  Into  the  opening  thus 
made  you  afterwards  poured  some  carbolic  acid." 

Dr.  Neftel,  who  was  present  at  the  operation,  after  relat- 
ing the  history  as  above,  briefly  says  further,  "  I  positively 
recollect  that  the  needle  did  not  touch  a  bone  or  any  joint." 

Dr.  O.  S.  Paine  relates  the  same  facts,  and  says  farther  : 
"  The  opening  was  in  the  most  prominent  part  of  the  abscess, 
near  the  crest  of  the  ilium,  the  abscess  forming  in  front  of 
the  gluteal  muscles.  Dr.  Sayre  did  not  open  the  hip-joint, 
nor  go  within  two  inches  of  it." 


316  CIVIL  MALPRACTICE. 

Dr.  Sayre,  after  waiting  a  year  for  the  plaintiff  to  move 
the  case  for  trial,  was  obliged  to  bring  it  to  trial  himself. 
The  jury  being  empanelled,  the  plaintiff  offered  to  refer  the 
cause  to  referees.  This  was  refused  as  the  defendant  pre- 
ferred to  go  to  trial  before  a  jury.  It  was  now  found  that 
the  witnesses,  Drs.  Willard  Parker  and  J.  M.  Carnochan, 
upon  whom  the  plaintiff  relied  to  prove  his  case,  had  failed 
to  appear.  At  the  instance  of  the  plaintiff  an  attachment 
was  issued  for  these  witnesses.  Fearing:  that  before  these 
witnesses  were  produced  the  case  might  be  laid  over  till  an- 
other term  of  court,  the  defendant  consented  that  the  cause 
might  go  before  referees. 

The  referees  finally  appointed  were  W.  C.  Traphagen, 
Esq.,  John  Swinburne,  M.  D.,  and  Benjamin  Estes,  Esq. 

ABSTRACT   OF  EVIDENCE.  —  FOE,    PLAINTIFF. 

.  .  Prof.  Willard  Parker  testified  "  that  he  had  made  an  ex- 
amination of  the  hip  some  time  after  the  operation,  and 
found  a  glairy,  viscid  fluid,  which  he  could  not  say  positively 
was  synovial  fluid;  he  merely  suspected  it  was  ;  the  hip- joint 
was  not  diseased.  Did  not  know  there  had  been  any  abscess. 
The  fluid  might  have  come  from  an  ulcer  or  from  an  absces- 
sal  membrane.     Would  say  child  was  scrofulous. 

Dr.  tT.  M.  Oarnochan  testified  that  he  had  examined  the 
child,  saw  orifice  and  discharge  from  hip  ;  the  discharge  a 
glairy  fluid.  It  struck  me  it  was  synovial  fluid.  Examined 
it  with  finger,  looked  at  its  general  tenacity  and  color.  Opin- 
ion at  the  time  it  was  synovial  fluid.  Orifice  so  situated  that 
joint  might  have  been  punctured.  Child  was  scrofulous. 
Sanious  fluid  is  a  fluid  half  pus  and  serous  fluid  mixed  with 
blood.  Synovial  fluid  is  made  up  of  one  thing  and  another  ; 
sometimes  there  are  salts  in  it,  epithelium  in  it,  and  there 
are  various  other  things.  Any  man  that  does  not  know  tbe 
difference  between  synovial  fluid  and  these  by  sight  or  touch 
had  better  get  out  of  the  profession  as  soon  as  he  can." 

The  case  being  taken  under  advisement  by  the  referees 
they  reported  to  the  honorable  court :  — 


IN  OPENING  AN  ABSCESS-  317 

'  "  That  the  defendant  had,  after  consultation  with  other 
skilful  surgeons,  operated  upon  the  plaintiff  for  an  abscess 
in  the  region  of  the  hip,  and  in  making  such  operation  used 
due  care  and  skill,  and  large  quantities  of  pus  escaped  from 
such  abscess  after  such  operation. 

That  in  making  such  operation  he  did  not  puncture  the 
hip-joint,  nor  did  he  cause  the  synovial  fluid  to  escape  or  to 
be  let  out  by  such  operation. 

That  the  operation  was  performed  skilfully  ;  that  the  pa- 
tient sustained  no  injury  from  it ;  and  that  such  operation 
was  necessary  to  the  health  of  the  patient  and  her  recovery. 

We  further  find  defendant  is  entitled  to  judgment. 

Whereupon  the  court  gave  judgment  for  defendant  in  five 
per  cent,  on  the  sum  of  $20,000,  as  an  extra  allowance,  in 
addition  to  his  usual  costs. 

Whereupon  the  plaintiff's  counsel  moved  for  a  new  trial 
on  the  ground  that  Dr.  John  Swinburne,  one  of  the  referees, 
was  a  personal  friend  of  the  defendant. 

Argument  being  heard,  the  court,  Fkeedman,  J.,  denied 
the  motion,  with  $10  costs.  If  plaintiff  is  aggrieved,  the 
remedy  is  to  bring  an  appeal." 

Synovial  fluid  "is  a  transparent,  yellowish- white,  or  slightly 
reddish  fluid,  viscid  like  the  white  of  an  egg,  having  an  alka- 
line reaction,  and  slightly  saline  taste.  It  consists,  according 
to  Frerichs,  in  the  ox,  of  94.85  water,  0.56  mucus  and  epi- 
thelium, 0.07  fat,  3.51  albumen  and  extractive  matter,  and 
0.97  salts."     Gray's  Anat.  (2d  Am.  ed.)  184. 

Synovia  "  is  an  alkaline,  transparent  viscous  secretion  con- 
taining albumen,  which  is  coagulable  at  a  boiling  tempera- 
ture."   Wilson's  Anatomist's  Vade  Mecum  (2d.  ed.)  London. 

Synovial  fluid  "differs  from  serous  fluid  very  considerably 
in  physical  and  chemical  character  ;  it  is  more  viscid,  and 
contains  a  larger  proportion  of  organic  matter  than  the 
serous  fluids."  Flint's  Physiology,  vol.  iii.  p.  44.  "  It  is  so 
viscid  that  it  is  with  difficulty  poured  from  one  vessel  to  an- 
other." lb.  45.  "  More  viscid  in  animals  that  take  consid- 
erable exercise  ;  thinner  when  the  joint  is  kept  quiet."  lb. 
45,  46. 


318  CIVIL  MALPRACTICE. 

Pus  "  of  a  good  quality  is  a  yellowisTi- white  fluid,  opaque, 
inodorous,  and  of  a  creamy  consistency.  It  is  made  up  of 
water,  albumen,  extractive  matter,  and  a  small  quantity  of 
soda,  phosphate  of  lime,  and  other  salts." 

"  Normal  pus  consists  essentially  of  two  distinct  parts  ;  pus 
corpuscles  or  globules,  and  a  colorless  aqueous  fluid,  liquor 
puris,  in  which  the  corpuscles  are  suspended."  Dunglison's 
Med.  Die. 

The  pus  corpuscle  "  is  a  round,  granular,  nucleated  cell, 
containing  from  one  to  sis  nuclei,  which  are  rendered  more 
distinct  by  the  action  of  acetic  acid.  It  measures,  on  an 
average,  about  ^^^o  of  ^-n  vnch  in  diameter."  Smith's  Op. 
Surg.  vol.  i.  p.  222. 

Pus  may  also  contain  "  particles  of  partially  disintegrated 
tissue,  as  shreds  of  areolar  tissue,  fragments  of  bone,"  &c. 
lb. 

Laudable  pus  "is  of  a  white,  yellowish  tint,  opaque,  homo- 
geneous, of  a  sweetish  taste,  without  any  particular  smell, 
and  of  the  consistency  of  thin  cream."  Gross's  Surg.  vol. 
i.  p.  127. 

"  Sa7iious,  serous,  ichorous,  or  sanguinolent  pus  is  thin, 
almost  transparent,  of  a  yellowish,  oily,  or  reddish  color." 
lb.  128. 


IN   SECONDARY  HEMORRHAGE. 

Fisher  v.  Geoss.^ 

"  It  appeared  upon  the  trial  that  a  colored  man,  who  had 
lost  his  leg  in  consequence  of  a  wound  received  during  the 
late  civil  war,  applied  to  Professor  Gross  to  perform  an 
operation  for  the  cure  of  an  aneurism  which  had  formed  in 
the  stump  as  the  result  of  a  fall.  It  further  appeared  that 
the  opinion  of  other  surgeons  had  also  been  asked,  and  that 
this  had  been  in  some  cases  unfavorable  to  operative  inter- 
ference ;  but  it  does  not  appear  that  the  surgeons  previously 
1  Med.  Times,  vol.  i.  p.  280;  Med.  Record,  vol.  vi.  p.  133. 


IN  SECONDAEY  HEMOREHAGE.  819 

consulted  were  of  great  eminence,  and  the  attempt  to  prove 
that  the  operation  had  been  declined  at  the  Pennsylvania 
Hospital  failed. 

The  plaintiff  was  fully  informed  as  to  the  nature  of  the 
operation  required,  and  the  risks  he  would  have  to  run  in 
submitting  to  it,  after  which  and  immediately  before  the 
operation,  he  was  heard  to  declare  that  he  would  have  it  done 
at  all  hazards.  No  want  of  skill  in  the  performance  of  it, 
and  no  want  of  due  attention  to  the  patient  afterwards,  were 
alleged  against  the  defendants  :  and  the  prosecution  seems 
to  have  hinged  upon  the  fact  that  the  defendants  had  had 
the  misfortune  to  lose  a  patient  after  performing  an  emi- 
nently justifiable  and  proper  operation. 

The  limb  had  been  amputated  through  the  upper  third. 
The  ligation  of  the  artery,  for  the  cure  of  the  subsequent 
aneurism,  was  done  at  the  clinic  of  the  Jefferson  Medical 
College,  by  Prof.  Gross,  assisted  by  Drs.  S.  W.  Gross, — his 
son,  who  was  made  one  of  the  defendants  in  the  suit,  — 
Andrews,  Newcomb,  Saunders,  Johnson,  and  Allis.  After 
the  performance  of  the  operation  he  was  taken  to  his  home, 
and  there  carefully  nursed  day  and  night  by  physicians  and 
advanced  students,  and  when  hemorrhage  occurred,  as  it  was 
feared  it  might,  assistance  was  promptly  at  hand.  All  these 
services  were  rendered  gratuitously. 

The  patient  died  from  the  hemorrhage.  The  coroner's 
jury  exonerated  the  surgeons  from  all  blame  ;  nevertheless, 
the  case  was  not  permitted  to  rest  here.  One  Jermon  or- 
dered the  body  to  be  disinterred,  and  to  be  reexamined  by 
Dr.  Duffie.  The  latter  was,  however,  unable  to  discover 
from  his  examinations  any  evidence  of  malpractice  :  in  fact, 
as  the  vessels  of  the  stump  had  been  removed  by  the  coro- 
ner's physician,  no  cause  of  death  was  apparent.  A  suit 
was  then  instituted  by  this  man  Jermon,  according,  as  he 
said,  to  the  dying  request  of  Fisher,  but  in  direct  ojjposition 
to  some  of  the  relatives  of  the  deceased. 

Notwithstanding  that  it  was  proved  at  the  trial  that  tlie 
deceased  had  not  lived  with  his  wife  and  had  been  separated 


320  CIVIL  MALPKACTICE. 

from  her,  and  that  she  was  not  with  him  at  the  time  of  the 
operation,  —  only  coming  to  him  later  to  nurse  him,  —  she 
nevertheless  appeared  as  the  nominal  plaintiff,  bnt  seems  to 
have  done  so  with  great  reluctance,  for,  three  weeks  before 
the  commencement  of  the  suit,  she  called  on  Prof.  Gross,  to 
say  she  disapproved  and  discountenanced  it.  His  mother 
also  seems  to  have  been  very  averse  to  its  being  instituted, 
for,  hearing  of  the  lawyer's  intention  to  disinter  the  body, 
in  order  to  have  a  post  mortem  examination  of  it  made,  she 
forbade  it,  and  threatened  to  prosecute  him  if  he  did  so. 

The  plaintiff's  counsel,  it  is  reasonable  to  suppose,  were  the 
real  plaintiff's,  especially  as  it  was  clearly  brought  out  in  evi- 
dence that  they  had  agreed  to  sustain  all  the  expense  of  the 
prosecution,  in  consideration  of  receiving  a  percentage  of  the 
damages. 

These  things  appearing  in  evidence,  his  Honor  Judge 
Lynd  directed  that  a  nonsuit  should  be  entered  against  the 
plaintiff,  she  having  utterly  failed  to  make  out  a  case  against 
the  defendants." 

'  Baeeatky.  "  If  any  person  shall  wickedly  and  wilfully 
excite  and  stir  up  any  suits  or  quarrels  between  the  people 
of  this  State,  either  at  law  or  otherwise,  with  a  view  to  pro- 
mote,strife  and  contention,  he  shall  be  deemed  guilty  of  com- 
mon barratry,  and  shall  be  fined  not  exceeding  $100  ;  and  if 
he  be  an  attorney  or  counsellor  at  law,  he  shall  be  suspended 
from  the  practice  of  his  profession,  for  any  time  not  exceed- 
ing six  months."     Hurd,  R.  S.  111.  1874,  p  355,  §  26. 

Maintenance.  "  If  any  person  should  officiously  inter- 
meddle in  any  suit  at  common  law  or  in  chancer}'",  that  in 
nowise  belongs  to  or  concerns  such  persons,  by  maintaining 
or  assisting  either  party,  with  money  or  otherwise,  to  prose- 
cute or  defend  such  suit,  with  a  view  to  promote  litigation, 
he  shall  be  deemed  guilty  of  maintenance,  and  upon  convic- 
tion thereof  shall  be  fined  and  punished  as  in  case  of  com- 
mon barratry :  Provided,  that  it  sliall  not  be  considered 
maintenance  for  a  man  to  maintain  the  suit  of  his  kinsman 
or  servant,  or  any  poor  person  out  of  charity."     lb.  §  27. 


IN  TREATMENT   OF  FROST-BITE.  351 

ALLEGED  MALPRACTICE  IN  THE  TREATMENT  OF  FROST- 
BITE. 

Kay  v.  Thompson.^ 

(Supreme  Court  of  New  Brunswick.) 

"  This  was  an  action  against  the  defendant  for  negligence 
and  unskilfulness  as  a  surgeon,  in  his  attendance  on  the 
plaintiff,  whereby,  it  was  alleged,  the  plaintiff  had  suffered 
great  and  unnecessary  pain,  and  had  lost  his  hands  and  feet 
and  was  prevented  from  continuing  a  profitable  employment 
in  which  he  was  engaged,  as  superintendent  of  a  copper  mine. 

At  the  first  trial  of  the  cause  it  appeared  that  the  plaintiff 
was  employed  as  superintendent  and  manager  of  a  copper 
mine,  at  a  place  called  Jetite,  at  a  salary  of  .£350  sterling 
per  year,  to  be  increased  to  £450  ;  that,  in  going  to  his  res- 
idence from  the  village  of  Maguadavic,  on  the  night  of  the 
23d  of  December,  1865,  he  lost  his  way  in  the  snow  and  was 
very  severely  frost-bitten  in  his  hands  and  feet ;  that  the 
defendant  (who  lived  about  nine  miles  distant)  was  sent  for 
the  next  day,  and  attended  the  plaintiff,  dressing  his  hands 
and  feet,  and  giving  directions  for  his  treatment ;  that  the 
plaintiff  suffered  great  pain  from  the  injuries,  and  frequently 
sent  for  the  defendant  during  the  next  twelve  days ;  that  the 
defendant  sent  him  medicine,  &c.,  from  time  to  time,  but 
did  not  visit  him  again  till  the  6th  of  January,  when  he 
gave  some  further  directions  as  to  his  treatment.  Between 
that  time  and  the  18th  of  January  the  plaintiff  sent  for  the 
defendant  several  times. 

On  the  18th  the  defendant  again  visited  the  plaintiff  and 
found  his  hands  and  feet  in  a  state  of  gangrene  ;  the  fingers 
were  quite  dead,  and  only  connected  with  the  hands  by  the 
ligaments  and  tendons,  and  the  metacarpal  bones  were  pro- 
truding nearly  half  an  inch.  On  this  occasion,  the  defend- 
ant cut  off  the  plaintiff's  fingers  and  toes  by  merely  severing 
the  tendons.     The  plaintiff's  sufferings  continued  after  this, 

1  Am.  Law  Reg.  vol.  x.  N.  S.  594. 
21 


322  CIVIL  MALPRACTICE. 

and  he  sent  for  the  defendant  two  or  three  times,  but,  as  he 
did  not  go  to  him,  the  plaintiff,  on  the  28th  of  January, 
employed  another  surgeon  who  amputated  his  hands  at  the 
wrist,  and  a  part  of  his  feet.  The  defendant's  contention  at 
the  trial  was,  that  the  plaintiff's  hands  and  feet  were  so  com- 
pletely frozen  that  all  vitality  was  destroyed,'  and  no  skill 
could  have  saved  them,  and  he  knew  this  when  he  first  saw 
the  plaintiff ;  that  his  more  frequent  attendance  would  have 
been  of  no  service,  as  he  could  have  done  no  more  than  he 
did  by  poultices,  &c.,  and  giving  directions  for  the  plaintiff's 
treatment ;  that,  though  amputation  might  have  been  per- 
formed on  the  18th  day  of  January,  it  could  not  have  been 
performed  sooner,  because  the  line  of  demarcation  between 
the  parts  superficially  frozen  and  the  dead  parts  was  not  de- 
fined until  then,  and  he  considered  it  advisable  to  wait  about 
ten  days  longer  to  see  how  far  the  granulations  (which  were 
then  forming)  would  extend  down  the  hand,  in  order  to  save 
as  much  of  the  hand  as  possible ;  and  this,  he  said,  could  not 
properly  be  known  at  the  time  the  amputation  was  per- 
formed. A  number  of  medical  witnesses  were  examined  on 
both  sides  as  to  whether  the  freezing  of  the  plaintiff's  hands 
and  feet  were  superficial  or  entire,  and  if  the  latter,  whether 
with  proper  treatment  his  hands  and  feet  could  have  been 
saved  ;  also,  whether  more  frequent  visits  to  the  plaintiff 
were  necessary,  and  whether  the  amputation  should  have 
been  performed  at  an  earlier  period. 

The  evidence  on  these  points  was  very  conflicting.  The 
jury  gave  a  verdict  for  the  plaintiff  for  $25,000  damages, 
and  found,  in  answer  to  a  question  left  by  the  judge,  that, 
under  the  circumstances,  the  plaintiff  would  have  lost  a  por- 
tion of  his  fingers  (as  far  as  the  second  joint).  That  verdict 
was  set  aside  for  the  improper  rejection  of  evidence  and  for 
excessive  damages.  On  the  second  trial  a  greater  number 
of  medical  witnesses  were  examined  on  the  part  of  the  de- 
fendant, but  the  jury  did  not  agree.  The  case  was  tried  a 
third  time  in  August,  1869,  on  substantially  the  same  evi- 
dence as  before,  and  the  plaintiff  obtained  a  verdict  for 
$9,000  damages. 


IN  TREATMENT  OF  EROST-BITE.  323 

A  rule  nisi  was  granted  to  set  aside  this  verdict  on  the 
ground  of  improper  admission  of  evidence  ;  that  the  verdict 
was  against  evidence  ;  and  excessive  damages. 

Kerr  ^  Grimmer  showed  cause  against  the  rule  ;  Tliomp- 
son  was  heard  in  support  of  it. 

Ritchie,  C.  J.,  delivered  the  judgment  of  the  court. 

The  evidence  objected  to  in  this  case  was  that  given  by 
the  medical  men,  who,  not  having  any  personal  knowledge 
of  the  case,  were  called  as  scientific  witnesses  to  give  their 
opinions  in  the  nature  of  experts.  The  objections  taken 
were  as  to  the  form  and  substance  of  the  questions  put,  and 
as  to  the  answers  these  witnesses  were  allowed  to  give. 

This  description  of  evidence  is  founded,  not  on  the  per- 
sonal observation  of  the  witnesses,  but  on  the  case  itself  as 
proved  by  witnesses  on  the  trial ;  and,  when  scientific  men 
are  called  as  witnesses,  they  cannot  give  their  opinions  as  to 
the  general  merits  of  the  cause,  but  only  their  opinions  on 
some  question  of  science  raised  by  the  facts  proved. 

It  is  objected  here  that  the  witnesses  were  asked,  and 
were  allowed  to  give,  their  opinions  on  the  very  point  which 
the  jury  were  to  decide. 

Folkes  V.  Chadd^  3  Doug.  1-57,  may  be  considered  the  ear- 
liest leading  case  on  this  subject.  It  was  followed  by  others, 
and  perhaps  some  of  them  are  not  entirely  reconcilable  as  to 
the  strictly  proper  form  of  the  question,  and  the  extent  to 
which  the  witness  may  be  interrogated. 

In  Jameson  v.  Drinkald,  12  Moore,  157,  Paek,  J.,  speak- 
ing of  nautical  witnesses  giving  their  opinions  in  cases  for 
running  down  ships,  says :  '  They  ought  not  to  say  that  they 
consider  the  fault  to  have  been  either  on  the  one  side  or  the 
other.'  And  Gaselee,  J.,  in  the  same  case  says  :  '  I  am 
clearly  of  opinion  that  a  scientific  person,  called  as  a  witness, 
is  not  entitled  to  give  his  opinion  as  to  the  merits  of  a  case, 
but  only  as  to  the  facts  as  proved  by  other  witnesses.' 

The  cases  of  /Sills  v.  Brown,  9  C.  &  P.  601 ;  Fe^iwich  v. 
Bell,  1  C.  &  K.  312  ;  and  Brown  v.  Brown,  Law  R.  1  Prob. 
&  Div.  46,  may  also  be  referred  to. 


824  CIVIL  MALPRACTICE. 

But  we  are  relieved  from  a  critical  examination  of  these 
cases,  because  in  MeNoughton' s  case^  10  C.  &  Fin.  200,  the 
House  of  Lords  submitted  to  the  judges  for  their  opinion  a 
question  which  entirely  covers  the  point  now  in  contest  be- 
fore us.  The  question  is  in  these  words :  '  Can  a  medical 
man,  conversant  with  the  disease  insanity,  who  never  saw 
the  prisoner  previous  to  the  trial,  but  who  was  present  dur- 
ing the  whole  trial  and  the  examination  of  all  the  witnesses, 
be  asked  his  opinion  as  to  the  state  of  the  prisoner's  mind 
at  the  time  of  the  commission  of  the  alleged  crime  ;  or  his 
opinion  whether  the  prisoner  was  conscious  at  the  time  of 
doing  the  act  that  he  was  acting  contrary  to  law ;  or  whether 
he  was  acting  under  any,  and  what,  delusion  at  the  time  ? ' 

The  answer,  delivered  by  TrNDAL,  C.  J.,  was  as  follows: 
'  We  think  the  medical  man,  under  the  circumstances  sup- 
posed, cannot  in  strictness  be  asked  his  opinion  in  the  terms 
above  stated,  because  each  of  these  questions  involves  the 
determination  of  the  truth  of  the  facts  deposed  to,  which  it 
is  for  the  jury  to  decide ;  and  the  questions  are  not  mere 
questions  upon  a  matter  of  science,  in  which  case  such  evi- 
dence is  admissible.  But  where  the  facts  are  admitted,  or 
not  disputed,  and  the  question  becomes  substantially  one  of 
science  only,  it  may  be  convenient  to  allow  the  question  to 
be  put  in  that  general  form,  though  the  same  cannot  be  in- 
sisted on  as  a  matter  of  right.' 

This  was  received  and  acted  upon  by  the  House  of  Lords, 
and  must,  as  the  decision  of  the  highest  appellate  tribunal  in 
the  nation,  bind  all  inferior  courts. 

However  difficult  or  inconvenient  in  practice  it  may  be  to 
propound  questions,  or  to  frame  answers  so  as  to  bring  the 
examination  strictly  within  the  limits  so  laid  down,  the  bur- 
den is  on  the  party  offering  such  testimony,  and  from  it  he 
cannot  escape.  We  have  with  great  labor  investigated  the 
learned  judge's  notes  of  the  trial,  extending  over  some  two 
hundred  and  fifty  pages  of  foolscap,  and  we  regret  to  have 
discovered,  in  many  instances,  clear  departure  from  the  pre- 
scribed rule,  both  in  the  questions  proposed  and  answers 
given. 


IN   TREATMENT   OF   FROST-BITE.  325 

The  question  at  issue  in  this  cause  was,  whether  the  de- 
fendant had  been  guilty  of  neglect  in  the  discharge  of  his 
professional  duties  in  his  attendance  on  the  plaintiff ;  and 
the  facts  were  neither  admitted  nor  contradicted  ;  the  evi- 
dence of  the  medical  witnesses  being  extremely  contradic- 
tory. 

It  will  only  be  necessary  to  refer  to  a  few  of  the  questions 
objected  to  by  way  of  illustration.  Thus,  Dr.  Gove  was 
asked,  '  What  reliance,  in  a  case  like  the  present,  can  be  put 
on  the  report  or  description  of  a  messenger  to  the  medical 
man  ?  '      This  was  clearly  not  a  question  of  science. 

Another  question  was  :  '  From  the  plaintiff's  statement, 
and  the  statement  of  the  witnesses  you  have  heard,  how  do 
you  account  for  the  destruction  of  the  plaintiff's  fingers  and 
toes  ;  or  what  caused  their  destruction  ?  '  The  answer  to 
this  was  :  '  I  think  long  continued  stimulation  of  the  raw 
surface  produced  the  destruction  or  the  death  of  the  parts.' 

But,  not  content  with  this,  the  witness  is  pressed  still  fur- 
ther by  the  following  question  :  '  From  the  evidence  before 
the  court,  to  what  do  you  ascribe  the  loss  of  the  plaintiff's 
fingers  and  toes  ?  '  His  answer  was  :  '  I  should  say,  first,  to 
non-attendance  of  the  defendant ;  over  stimulation  of  the 
inflamed  parts.'  Here  the  witness  undertakes  to  determine 
one  of  the  most  important  questions  of  fact  in  controversy, 
and,  in  effect,  precisely  what  the  jury  were  to  decide  on  the 
merits. 

Again,  Dr.  Black  was  asked  the  following  question  :  '  From 
the  evidence,  to  what  would  you  ascribe  the  loss  of  the  plain- 
tiff's limbs  ?  '  His  answer  was  :  '  I  would  ascribe  it,  first, 
to  frost-bite ;  second,  to  neglect  in  attendance  ;  third,  to  want 
of  proper  treatment.' 

Nothing  could  be  more  objectionable  than  this  answer, 
if  we  follow,  as  we  are  bound  to,  the  rule  laid  down  by  the 
House  of  Lords. 

The  evidence  thus  pressed  in  was  material,  and  might 
have  had  a  most  important  effect  on  the  minds  of  the  jury. 
There  were  only  three  medical  men  examined  on  the  part 


326  CIVIL  MALPEACTICE. 

of  the  plaintiff;  and  Drs.  Gove  and  Black  were  material 
and  important  witnesses,  on  whom  he  mainly  relied.  The 
jury,  for  anght  we  know,  may  have  adopted  their  conclusions 
thus  stated  on  the  merits,  without  themselves  at  all  weighing 
the  facts  and  opinions  in  evidence  on  which  those  conclusions 
were  based,  and  without  determining  whether  those  facts  and 
opinions  warranted  the  conclusions  stated  ;  and  which  con- 
clusions it  was  the  duty  of  the  jury,  and  the  jury  alone, 
wholly  unbiased,  to  arrive  at. 

The  law  with  regard  to  the  right  of  a  party  to  a  new  trial, 
where  improper  evidence  has  been  received  against  him,  is  so 
clear,  and  has  been  so  often  acted  on  in  this  court,  that  it  is 
hardly  necessary  to  cite  authorities  in  support  of  it.  In  the 
case  of  Bailey  v.  Haines,  19  Law  J.  Q.  B.  78,  where  evi- 
dence was  improperly  received,  but  the  jury  professed  to  have 
found  their  verdict  independent  of  such  evidence.  Lord  Den- 
man  expressed,  as  the  opinion  of  himself  and  the  rest  of 
the  judges,  that,  if  evidence  was  wrongly  received,  it  was 
quite  immaterial  that  the  jury  professed  to  have  found  their 
verdict  independently  of  it.  In  Wright  v.  Doe  deni.  Tatham, 
7  A.  &  E.  330,  the  law  is  thus  explicitly  stated  by  Lord 
Denman  :  '  Sir  F.  Pollock  suggested  that  we  might  act  upon 
the  example  of  the  Common  Pleas,  in  Doe  v.  Taylor,  6 
Bingh.  561,  and  might  enter  upon  an  inquiry  whether,  even 
though  this  evidence  may  have  been  improperly  received, 
there  was  not  proof  enough  in  the  cause  without  it  to  war- 
rant the  verdict.  But  as  this  court  has  so  lately,  on  full  con- 
sideration, and  in  conformity  with  a  decision  of  the  Court  of 
Exchequer,  renounced  the  discretion  which  was  in  that  case 
exercised,  we  need  not  repeat  our  own  reasons  for  holding 
that,  where  evidence  formally  objected  to  at  N-isi  Prius  is 
received  by  the  judge,  and  afterwards  thought  by  the  court 
to  be  inadmissible,  the  losing  party  has  a  right  to  a  new 
trial.'  This  doctrine  was  acted  on  in  this  court  in  the  cases 
of  Riley  v.  TJie  Mayor,  ^c.  of  St.  John,  Easter  T.  1864, 
and  Grinan  v.  The  Mayor,  ^c.  of  St.  John,  Easter  T.  1866, 
and  in  other  cases.     All  we  can  say  in  conclusion  on  this 


IN  TREATMENT  OF  FROST-BITE.  32T 

point  is,  that  if  counsel  will  press  in  improper  evidence  after 
objection  made,  they  must  take  the  consequences  which  nec- 
essarily and  legally  flow  therefrom. 

As  to  the  second  ground,  that  the  verdict  was  against  the 
evidence,  the  verdict  having  been  found,  as  we  think,  on  im- 
proper evidence,  it  is  not  necessary,  nor,  as  we  conceive, 
would  it  be  proper,  for  us  to  discuss  this  point. 

As  to  the  last  ground,  that  the  damages  are  excessive,  as 
we  are  now  compelled  to  grant  a  new  trial,  by  reason  of  im- 
proper admission  of  evidence,  this  point  does  not  arise.  It 
is  therefore  sufficient  for  us  to  say  that  we  adhere  to  the 
judgment  pronounced  by  us  in  this  cause,  on  a  former  occa- 
sion, upon  the  subject  of  damages  (1  Hannay,  297),  and  the 
duty  of  the  jury  in  respect  thereto. 

As  it  has  come  to  our  knowledge,  in  another  cause  in  this 
court,  that  the  defendant  has  died  since  the  verdict,  and, 
therefore,  as  the  granting  a  new  trial  now,  except  upon 
terms,  might  defeat  the  ends  of  justice,  we  shall  refrain  from 
making  the  rule  absolute  for  a  new  trial  until  the  next  term, 
in  order  to  afford  the  plaintiff  an  opportunity  of  making  any 
application  that  he  may  be  advised,  as  to  the  terms  on  which 
the  new  trial  should  be  granted.  On  this  point  we  refer  to 
Griffiths  V.  Williams,  1  C  &  J.  47,  and  Freeman  v.  Rosher, 
13  Q.  B.  780." 

Patten  v.  Wiggin.^ 

"  Action,  assumpsit  on  account  annexed.  One  portion 
of  account  is  for  professional  services  as  a  phj^sician,  in  at- 
tendance on  defendant's  minor  son.  The  defence  to  this 
portion  of  the  claim  was  malpractice  in  the  treatment  of  the 
patient,  and  such  ignorance,  want  of  skill,  and  judgment,  on 
the  part  of  the  plaintiff  in  managing  professionally  the  case 
under  his  care,  that  the  patient  was  more  injured  than  bene- 
fited by  his  treatment,  and  that  on  the  whole  case  he  was  not 
reasonably  entitled  to  recover  anything  for  his  services. 
1  51  Maine,  594. 


328  CIVIL  MALPEACTICE. 

Evidence  was  introduced  on  both  sides  as  to  such  treat- 
ment and  management  by  the  plaintiff  during  the  whole 
time  the  patient  was  under  his  care.  The  court  (Judge 
Kent)  instructed  the  jury  that  if  the  plaintiff  had  been 
guilty  of  malpractice,  or  neglect,  or  want  of  ordinary  care 
and  skill,  within  the  rules  hereafter  stated,  it  would  be  a  de- 
fence to  that  part  of  the  claim  which  related  to  the  treat- 
ment of  defendant's  son,  and  the  court  instructed  the  jury  as 
follows :  — 

'  1.  When  a  man  offers  himself  to  the  public,  or  to  pa- 
tients, as  a  physician  or  surgeon,  the  law  requires  that  he  be 
possessed  of  that  reasonable  degree  of  learning,  skill,  and  ex- 
perience which  is  ordinarily  possessed  by  others  of  his  pro- 
fession who  are  in  good  standing  as  to  qualification,  and 
which  reasonably  qualifies  him  to  undertake  the  care  of 
patients. 

This  rule  does  not  require  that  he  should  have  the  highest 
skill,  or  largest  experience,  or  most  thorough  education,  equal 
to  the  most  eminent  of  the  profession  in  the  country  ;  but  it 
does  require  that  he  should  not,  when  uneducated,  ignorant, 
and  unfitted,  palm  himself  off  as  a  professional  man,  well 
qualified,  and  go  on  blindly  and  recklessly  to  administer 
medicines,  or  perform  surgical  operations.  The  rule  above 
stated  is  the  true  one. 

But  the  physician  qualified  within  this  rule  may  be  guilty 
of  negligence  or  malpractice. 

2.  The  law  requires  and  implies,  as  part  of  the  contract, 
that  when  a  physician  undertakes  professional  charge  of  a 
patient,  he  will  use  reasonable  and  ordinary  care  and  dili- 
gence in  the  treatment  of  the  case. 

3.  The  law  further  implies,  that  he  agrees  to  use  his  best 
skill  and  judgment,  at  all  times,  in  deciding  upon  the  nature 
of  the  disease,  and  the  best  mode  of  treatment,  and  the  man- 
agement generally  of  the  patient. 

The  essence  of  the  contract  is,  that  he  is  to  do  his  best  —  to 
yield  to  the  use  and  service  of  his  patient  his  best  knowledge, 
skill,  and  judgment,  with  faithful  attention  by  day  and  by 


IN  TREATMENT   OF  FROST-BITE.  329 

night  as  reasonably  required.  But  there  are  some  things 
which  the  law  does  not  imply  or  require.  He  is  not  responsi- 
ble for  want  of  success  in  his  treatment,  unless  it  is  proved  to 
result  from  want  of  ordinary  care  or  ordinary  skill  and  judg- 
ment. He  is  not  a  warranter  of  a  cure,  unless  he  makes  a 
special  contract  to  that  effect.  If  he  is  shown  to  possess  the 
qualifications  stated  in  the  first  proposition,  to  authorize  and 
justify  him  in  offering  his  services  as  a  physician,  then,  if  he 
exercises  his  best  skill  and  judgment,  with  care  and  careful 
observation  of  the  case,  he  is  not  responsible  for  an  honest 
mistake  as  to  the  nature  of  the  disease,  or  as  to  the  best 
mode  of  treatment,  when  there  was  reasonable  ground  for 
doubt  or  uncertainty. 

If  the  case  is  such  that  no  physician  of  ordinary  knowl- 
edge or  skill  could  doubt  or  hesitate,  and  but  one  course  of 
treatment  would  by  such  professional  man  be  suggested,  then 
any  other  course  of  treatment  might  be  evidence  of  a  want 
of  ordinary  knowledge  or  skill,  or  care  and  attention,  or  ex- 
ercise of  his  best  judgment,  and  a  physician  might  be  held 
liable,  however  high  his  reputation.  If  there  are  distinct 
and  different  schools  of  practice,  as  Allopathic  or  Old  School, 
Homoeopathic,  Thompsonian,"  Hydropathic  or  water  cure,  and 
a  physician  of  one  of  those  schools  is  called  in,  his  treatment 
is  to  be  tested  by  the  general  doctrines  of  his  school,  not  by 
those  of  other  schools.  It  is  to  be  presumed  that  both  par- 
ties so  understand  it.  The  jury  are  not  to  judge  by  de- 
termining which  school  in  their  own  view  is  best.  Apply 
these  rules  to  the  evidence. 

Then  as  to  medical  and  surgical  treatment  of  the  case : 
was  there,  or  was  there  not  a  want  of  ordinary  skill  and 
judgment,  such  as  to  render  the  plaintiff  liable  within  the 
above  rules  —  such  evidence  as  satisfies  you  that  he  either 
did  not  possess  the  education,  judgment,  and  skill,  which 
authorized  him  to  undertake  the  case  and  enabled  him  to 
treat  it  with  ordinary  skill,  or  that  he  was  guilty  of  that 
neglect  or  carelessness,  in  the  treatment  or  investigation 
of  the  case,  which  showed  that  he  did   not   faithfully  and 


330  ,  CIVIL  MALPEACTICE. 

honestly  apply  his  skill  and  knowledge  and  best  judg- 
ment ? ' 

Defendant  requested  the  court  to  give  the  following  in- 
structions :  — 

'  A  physician  who,  upon  request  and  in  consideration  of 
being  paid  for  his  services,  takes  charge  of  the  case  of  a 
diseased  person,  warrants  that  he  possesses  and  promises  to 
exercise  the  knowledge,  skill,  and  care  requisite  to  enable 
him  to  understand  the  nature  of  his  disease,  and  to  treat  it 
properly  ;  but  the  degree  of  such  knowledge,  skill,  and. 
care  is  not  that  which  is  possessed  and  exercised  by  phy- 
sicians of  the  highest  knowledge,  skill,  and  care,  but  it  is 
that  possessed  by  physicians  of  ordinary  knowledge,  skill, 
and  care.' 

The  judge  declined  to  give  this,  except  as  given  in  former 
instructions. 

The  judge  in  his  charge  also  instructed  the  jury,  that  in 
cases  where  authorities  differ  or  '  doctors  disagree,'  the 
competent  physician  is  only  bound  to  exercise  his  best 
judgment  in  determining  which  course  is  on  the  whole  the 
best. 

Verdict  for  plaintiff  for  the  amount  of  his  bill,  to  which 
rulings  and  refusals  the  defendant  excepted. 

The  case  on  the  exceptions  was  argued  before  the  law 
court,  at  the  May  term,  1862,  and  the  rulings  of  the  judge 
at  the  trial  were  sustained. 

The  opinion  of  the  court  was  drawn  up  by  Appleton, 
C.  J. 

The  instructions  given  were  correct.  A  plaintiff  in  a  suit 
against  a  physician  for  malpractice  must  prove  that  the  de- 
fendant assumed  the  character  and  undertook  to  act  as  a 
physician,  without  education,  knowledge,  and  skill,  which 
entitled  him  to  act  in  that  capacity  ;  that  is,  he  must  show 
that  he  had  not  reasonable  or  ordinary  skill  ;  or  he  is  bound 
to  prove,  in  the  same  way,  that  having  such  knowledge  and 
skill,  he  neglected  to  apply  them  with  such  care  and  dili- 
gence  as,  in    his   judgment   properly  exercised,  they  must 


IN  AMPUTATION  OF  A  BREAST.         331 

have  appeared  to  require ;  in  other  words,  that  he  neglected 
to  apply  them  with  such  care  and  diligence  as,  in  his  judg- 
ment properly  exercised,  he  must  have  appeared  to  require  ; 
in  other  words,  that  he  neglected  the  proper  treatment  from 
inattention  and  carelessness.  Leigliton  v.  Sargent,  7  Foster, 
460.  The  same  facts  which  would  authorize  a  recovery  for 
malpractice  would  constitute  a  defence  in  a  suit  for  pro- 
fessional services.  Physicians  do  not  warrant  the  success  of 
their  prescriptions.  '  The  law,'  remarks  Mr.  Justice  Wood- 
ward, in  McCandless  v.  McWha,  22  Penn.  261,  'demands 
qualifications  in  the  profession  practised ;  not  extraordinary 
skill,  such  as  belongs  only  to  few  men  of  rare  genius  and 
endowments,  but  the  degree  which  ordinarily  characterizes 
the  profession.'  The  same  views  of  the  law  were  laid  down 
in  Simonds  v.  Henry,  39  Maine,  155. 

The  instructions  given  were  in  accordance  with  the  set- 
tled principles  of  law.  The  one  requested  had  been  given 
in  substance.  If  other  instructions  had  been  desired,  they 
should  have  been  requested.  Exceptions  overruled. 

EiCE,  Cutting,  Davis,  and  Kent,  JJ.,  concurred." 


ALLEGED  MALPEACTICE  IN  THE  AMPUTATION  OF  A  BREAST. 

McClallen  V.  Adams.^ 

"Assumpsit  on  an  account.  One  item  was  $30  for  ampu- 
tating the  breast  of  the  defendant's  wife.  The  action  was 
tried  in  the  Common  Pleas,  before  Strong,  J. 

The  defendant  lived  in  Colerain,  in  the  county  of  Frank- 
lin. The  plaintiff  lived  in  Nassau,  in  New  York,  a  distance 
of  sixty-five  miles  from  Colerain.  He  had  formerly  lived  in 
Colerain,  and  was  a  surgeon  of  good  reputation.  The  wife 
of  the  defendant  had  been  afflicted  with  a  scrofulous  humor 
in  her  breast  for  about  two  years,  which  did  not,  however, 
prevent  her  from  attending  to  her  domestic  duties  in  the 

1  19  Pick.  R.  333. 


332  CIVIL  MALPEACTICE. 

family,  and  the  defendant  then  carried  her  from  Colerain  to 
Nassau  and  put  her  under  the  care  of  the  ph^intiff  as  a 
surgeon.  At  that  time  the  humor  was  not  a  cancer  nor 
cancerous.  After  she  had  been  at  Nassau  ten  weeks,  the 
plaintiff  performed  on  her  the  operation  of  amputating  her 
breast,  and  she  died  in  about  a  week  after.  The  defendant 
had  no  communication  from  the  plaintiff,  nor  from  the  de- 
fendant's wife  from  the  time  that  he  carried  her  to  the  plain- 
tiff, until  a  day  or  two  before  her  death,  when  he  went  to 
the  house  of  the  plaintiff. 

The  counsel  for  the  defendant  contended,  that  the  plain- 
tiff was  not  entitled  to  recover  for  this  item,  because  it  was 
not  proved  that  the  service  was  performed  at  the  request  of 
the  defendant. 

The  counsel  for  the  plaintiff  requested  the  judge  to  in- 
struct the  jury,  that  as  the  defendant  put  his  wife  under  the 
care  of  the  plaintiff  as  a  surgeon,  he  impliedly  requested 
him  to  do  for  her  what  he  should  think  necessary  and  proper ; 
and  as  the  wife  must  have  assented  to  the  operation,  her  as- 
sent was  the  assent  of  the  husband,  and  therefore  the  de- 
fendant was  liable  to  pay  for  this  service. 

The  judge  refused  to  give  this  instruction,  and  instructed 
the  jury  a.s  follows  :  '  That  as  it  did  not  appear  that  the  wife 
had  a  cancer  or  cancerous  humor  when  the  defendant  put 
her  under  the  care  of  the  plaintiff,  the  plaintiff  was  not 
authorized  to  perform  the  operation,  so  as  to  charge  the  de- 
fendant with  payment,  without  proving  to  the  reasonable 
satisfaction  of  the  jury  that  the  operation  was  necessary 
and  proper  under  the  circumstances  ;  and  proving  fur- 
ther, that  before  he  performed  the  operation,  he  gave  no- 
tice to  the  defendant,  or  that  it  would  have  been  dangerous 
to  the  wife  to  wait,  before  he  performed  the  operation,  till 
notice  could  be  given  to  the  defendant ;  and  as  no  evidence 
of  this  kind  was  given  or  offered,  the  jnry  would  not  be 
authoi-ized  to  allow  this  item.' 

The  jury  found  for  the  plaintiff,  but  did  not  include  this 
item  in  their  verdict. 


IN  AMPUTATION  OF  A  BEEAST.         333 

To  the  refusal  to  give  the  instruction  prayed  for  by  the 
plaintiff,  and  to  the  instructions  given  to  the  jury,  the  plain- 
tiff excepted. 

In  support  of  the  exceptions,  counsel  cited  Bui.  N.  P.  26  ; 
Bac.  Abr.  Action  on  the  Case,  F  ;  Slater  v.  Baker,  2  Wils. 
359 ;  Seare  v.  Prentice,  8  East,  348  ;  G-roenveWs  case,  1 
Ld.  Raym.  214  ;  Russel  v.  Palmer,  2  Wils.  325  ;  Pitt  v. 
Yalden,  4  Burr.  2060  ;  Dearborn  v.  Dearhorn,  15  Mass.  R. 
316  ;  Executors  of  Smedes  v.  Elmendorf,  3  Johns.  R.  ]  85. 

Shaw,  C.  J.  The  court  are  of  opinion,  upon  the  facts 
appearing  by  the  bill  of  exceptions,  that  the  defendant,  by 
placing  his  wife  under  the  care  of  the  plaintiff,  whom  he 
knew,  at  a  distance  from  his  own  residence,  for  medical  and 
surgical  treatment,  for  a  dangerous  disease,  impliedly  re- 
quested him  to  do  all  such  acts,  and  adopt  such  course  of 
treatment  and  operations,  as  in  his  judgment  would  be 
most  likely  to  effect  her  ultimate  cure  and  recovery,  with 
the  assent  of  the  wife,  and  therefore  that  the  operation  in 
question  was  within  the  scope  of  the  authority  given  him. 
They  are  also  of  opinion  that  the  assent  of  the  wife  to  the 
operation  was  to  be  presumed  from  the  circumstances. 
Although  it  might  have  been  an  act  of  prudence  in  the 
plaintiff  to  give  the  defendant  notice  of  the  situation  of  the 
wife,  and  of  his  intention  to  perform  a  dangerous  operation, 
yet  we  think  he  might  safely  trust  to  the  judgment  of  the 
wife  to  give  her  husband  notice  from  time  to  time  of  her 
situation  and  intentions,  and  that  it  was  not  necessary,  in 
point  of  law,  for  the  plaintiff  to  give  such  notice,  or  have 
any  new  request,  in  order  to  enable  him  to  recover  a  reason- 
able compensation  for  his  services.  If  the  defendant  in- 
tended to  show  that  the  operation  was  unecessary  or  im- 
proper, under  the  circumstances,  or  that  it  was  unskilfully  or 
carelessly  performed,  the  burden  of  proof  was  on  him.  The 
performance  of  this  operation  being  within  the  scope  of  the 
plaintiff's  authority,  if  in  his  judgment  necessary  or  expe- 
pedient,.  and  that  it  was  so  is  to  be  presumed  from  the  fact, 
it  was  not  necessary  for  him  to  prove  to  the  satisfaction  of 


334  CIVIL  MALPRACTICE. 

the  jury  that  it  was  necessary  and  proper,  under  the  cir- 
cumstances, or  that  before  he  performed  it  he  gave  notice  to 
the  defendant,  or  that  it  would  be  dangerous  to  the  wife  to 
wait  before  he  performed  it,  till  notice  could  be  given  to 
the  plaintiff. 

The  Court  of  Common  Pleas,  before  which  the  cause  was 
tried,  having  expressed  an  opinion  and  directed  the  jury 
that  these  proofs  were  necessary  to  enable  the  plaintiff  to 
recover  a  compensation  for  his  professional  services,  this 
court  is  of  opinion  that  that  direction  was  wrong,  that  the 
exceptions  be  allowed,  the  verdict  set  aside,  and  a  new  trial 
had,  and  that  the  cause  be  remitted  to  the  Court  of  Common 
Pleas  for  trial." 


ALLEGED  MALPRACTICE  IN  USING  A  BOUGIE. 

Rex  v.  Van  Butchell.^ 

"  Manslaughter.  The  deceased,  William  Archer,  la- 
bored under  some  disease  of  the  rectum,  for  which  the  defend- 
ant passed  a  rectal  bougie.  After  which  deceased  immediately 
took  to  his  bed,  and  died  seven  days  after  the  operation.  An 
indictment  was  found,  and  defendant  put  upon  his  trial  in 
Old  Bailey,  Session  of  1829.  The  prosecution  set  forth  that 
the  defendant  was  not  a  regular  surgeon,  and  proceeded  to 
state  that  Lord  Coke  had  said  that,  if  one  who  is  not  a  reg- 
ular surgeon  take  upon  him  to  cure  a  man,  and  the  patient 
die,  this  is  felony. 

HuLLOCK,  B.  It  is  so  said  in  Lord  Coke's  Institutes, 
undoubtedly,  but  there  has  never  been  any  decision  of  the 
kind. 

On  the  part  of  the  defence  it  was  proposed  to  show,  if  it 
was  essential,  that  the  defendant  had  had  a  regular  educa- 
tion.    The  court  did  not  require  it. 

It  was  then  proved  by  Mr.  Lloyd  that  he  opened  the  body 
of  the  deceased,  and  that  he  found  a  portion  of  the  ileum 
1  3  Carr.  &  P.  629. 


IN  USING  A  BOUGIE.  335 

adherent  to  the  rectum,  and  that,  on  separatmg  this  adhe- 
sion, he  discovered  a  small  hole  perforated  through  the  rec- 
tum. Mr.  Lloyd  was  cross-examined,  with  a  view  of  show- 
ing that  these  appearances  might  have  been  the  result  of  nat- 
ural causes ;  and  he  stated  that  operations  would  sometimes 
fail,  notwithstanding  that  they  might  be  most  skilfully  per- 
formed ;  and  he  added  that  he  himself  had  operated  in  ex- 
tracting an  encysted  tumor  from  the  breast  of  a  woman, 
at  a  time  when  she  was  pregnant,  and  who  soon  afterwards 
died ;  and  that  he  and  many  other  surgeons  thought  that 
correct  practice,  though  he  admitted  that  the  propriety  of 
the  operation  was  doubted  by  others. 

The  prosecution  rested. 

HuLLOCK,  B.  I  am  free  to  confess  that  this  does  not 
even  approach  to  a  case  of  manslaughter.  It  would  be  dread- 
ful if,  every  time  an  operation  was  performed,  an  individual 
was  liable  to  have  his  practice  questioned. 

The  defence  then  proposed  showing  that  the  defendant 
had  a  regular  medical  education. 

HuLLOCK,  B. ,  I  do  not  think  that  that  is  at  all  material 
to  the  case. 

It  was  also  proposed  to  call  a  great  number  of  patients 
whose  cases  had  been  most  successfully  treated  by  defend- 
ant. 

HuLLOCK,  B.  This  is  an  indictment  for  manslaughter, 
and  I  am  really  afraid  to  let  the  case  go  on,  lest  an  idea 
should  be  entertained  that  a  man's  practice  may  be  ques- 
tioned whenever  an  operation  fails.  In  this  case  there  is  no 
evidence  of  the  mode  in  which  this  operation  was  performed  ; 
and  even  assuming  for  the  moment  that  it  caused  the  death 
of  the  deceased,  I  am  not  aware  of  any  law  which  says  that 
this  party  can  be  found  guilty  of  manslaughter.  It  is  my 
opinion  that  it  makes  no  difference  whether  the  party  be  a 
regular  or  an  irregular  surgeon  ;  indeed,  in  remote  parts  of 
the  country,  many  persons  would  be  left  to  die  if  irregular 
surgeons  were  not  allowed  to  practise.  There  is  no  doubt 
that  there  may  be  cases  where  both  regular  and  irregular 


336  CIVIL  MALPRACTICE. 

surgeons  might  be  liable  to  an  indictment,  as  there  might  be 
cases  where,  from  the  manner  of  the  operation,  even  malice 
might  be  inferred.  All  that  the  law  books  have  said  has 
been  read  to  3^011,  but  they  do  not  state  any  decisions  ;  and 
their  silence  in  that  respect  goes  to  show  what  the  uniform 
opinion  of  lawyers  has  been  upon  this  subject.  As  to  what 
is  said  by  Lord  Coke,  he  merely  details  an  authority,  a  very 
old  one,  without  expressing  either  approbation  or  disappro- 
bation ;  however  we  find  that  Lord  Hale  has  laid  down  what 
is  the  law  on  this  subject.  That  is  copied  by  Mr.  Justice 
Blackstone,  and  no  book  in  law  goes  any  further.  It  may 
be  that  a  person  not  legally  qualified  to  practise  as  a  surgeon 
may  be  liable  to  penalties  ;  ^  but  surely  he  cannot  be  liable 
to  an  indictment  for  felony.  It  is  quite  clear  you  may  re- 
cover damages  against  a  medical  man  for  a  want  of  skill; 
but,  as  Lord  Hale  says,  '  God  forbid  that  any  mischance  of 
this  kind  should  make  a  person  guilty  of  murder  or  man- 
slaughter.' Such  is  the  opinion  of  one  of  the  greatest  judges 
that  ever  adorned  the  bench  of  this  countrj^ ;  and  his  prop- 
osition amounts  to  this :  that  if  a  person,  bond  fide  and  hon- 
estly exercising  his  best  skill  to  cure  a  patient,  performs  an 
operation  which  causes  the  patient's  death,  he  is  not  guilty 
of  manslaughter.  In  the  present  case  no  evidence  has  been 
given  respecting  the  operation  itself.  It  might  have  been 
performed  with  the  most  proper  instrument,  and  in  the  most 
proper  manner,  and  yet  might  have  failed.  Mr.  Lloyd  has 
himself  told  us  that  he  performed  an  operation,  the  propriety 
of  which  seems  to  have  been  a  sort  of  vexata  qucestio  among 
the  medical  profession;  but  still  it  would  be  most  dangerous 
for  it  to  get  abroad,  that  if  an  operation  performed  either 
by  a  licensed  or  unlicensed  surgeon  should  fail,  that  surgeon 
would  be  liable  to  be  prosecuted  for  manslaughter.  I  think 
that,  in  point  of  law,  this  prosecution  cannot  be  sustained  ; 

1  The  statutes  by  ■wbich  these  penalties  are  imposed,  which  are  all  of  the 
reign  of  Henry  VIII.,  are  collected  in  Com.  Dig.  tit.  Physician,  and  one  of  them 
(the  St.  34  Hen.  VIII.  c.  8)  has  a  preamble  prefixed  to  it,  which  is  anything 
but  complimentary  to  the  medical  profession. 


IN  USING  A  BOUGIE.  337 

and  I  feel  bound  to  say  that  no  imputation  whatever  ought  to 
be  east  upon  the  gentleman  who  is  now  at  the  bar,  in  conse- 
quence of  anything  that  has  occurred. 

Verdict,  Not  guilty'' 

Lynch  v.  Davis. ^ 

"  Hareis,  J.  If  the  cause  of  action  stated  in  the  com- 
plaint is  to  be  regarded  as  a  breach  of  the  obligation  implied 
in  the  employment  of  the  defendant  as  a  physician,  the 
right  of  action  was  vested  in  the  plaintiff,  as  the  husband  of 
his  wife,  and  not  as  administrator.  The  contract  to  perform 
his  professional  duty  in  a  skilful  manner  was  made  with  the 
husband,  and  not  the  wife. 

In  an  action  founded  upon  this  breach  of  duty,  the  hus- 
band might  recover  the  damages  he  had  sustained  by  reason 
of  the  loss  of  the  society  and  aid  of  his  wife.  It  may  not 
be  improper  to  state,  that  at  the  same  circuit  at  which  this 
issue  was  tried,  an  action  brought  by  the  husband  in  his  own 
right,  for  the  same  cause  of  malpractice,  was  brought  to 
trial,  and  the  plaintiff  recovered  such  damages  as  the  jury 
thought  jfit  to  award  to  him  for  the  loss  of  his  wife. 

If  the  action  had  been  founded  upon  the  wrong  com- 
mitted by  the  defendant,  and  the  personal  suffering  that  re- 
sulted to  the  wife,  she  could  not  have  sued  alone,  if  living; 
but  the  husband  must  have  been  joined  as  plaintiff  with  her. 
1  Chit.  PL  73.  It  would  indeed  have  been  the  action 
of  the  husband,  though  the  wife,  being  the  meritorious  cause, 
must  have  been  joined  with  him  as  plaintiff.  Upon  the 
death  of  the  wife,  the  cause  of  action,  so  far  as  related  to 
her,  did  not  survive  at  common  law. 

The  act  of  1847  (Sess.  Laws  1847,  p.  575),  upon  which 
the  plaintiff  relies,  only  gives  an  action  to  the  personal 
representatives  of  the  person  injured  and  dying,  when  the 
person  so  injured,  if  living,  might  have  maintained  an  action 
and  recovered  damages  for  the  same  injury.     The  common 

1  Howard's  Practice  (New  York),  vol.  12,  page  323. 
22 


338  CIVIL   MALPRACTICE. 

law  gave  the  liusband  and  the  father  a  right  to  recover  of 
the  wrong-doer  the  pecuniary  injury  he  had  sustained  by 
reason  of  the  kilHng  of  his  wife  or  child.  The  husband  had 
availed  himself  of  this  right  of  action,  in  this  very  case,  to 
recover  damages  for  the  loss  of  his  wife.  The  object  of  the 
act  of  1847  was  to  extend  the  same  rule  to  the  wife  and  the 
child,  so  that  they  also  might  recover  the  pecuniary  damages 
they  had  sustained  by  the  wrongful  killing  of  the  husband 
or  the  father.  Hence,  the  proper  rule  of  damages  in  all 
such  cases  is  to  inquire  what  the  party  killed  was  worth  to 
his  family.  The  husband  has  already  had  the  benefit  of  this 
same  rule  as  applicable  to  the  same  injury  of  which  he  now 
complains.  It  would  be  an  obvious  perversion  of  the  inten- 
tion of  the  legislature  to  allow  a  second  action  to  be  sustained 
for  precisely  the  same  injury. 

Nor  is  there  anything  in  the  language  of  the  act  referred 
to  which  would  warrant  such  an  action.  The  wife,  if  liv- 
ing, could  not  have  sustained  an  action  for  the  injury.  The 
action,  as  we  have  seen,  must  have  been  either  in  favor  of 
the  husband  alone,  or  the  husband  and  wife  as  joint  plain- 
tiffs. The  case  is,  therefore,  neither  within  the  terms  nor 
the  intent  of  the  statute. 

The  demurrer  must  be  allowed,  and  the  complaint  dis- 
missed, with  costs  to  be  taxed." 

In  G-reen  v.  Hudson  River  R.  R.  Co.  2  Keyes,  294-297 
(1866),  New  York  Court  of  Appeals,  the  case  cited  supra  is 
modified  if  not  overruled. 


chose  in  action. 
Long  v.  Moeeison.^ 


"  Peekins,  J.  James  Long  was  called  as  a  physician,  to 
attend  upon  Mrs.  Margaret  Edmonds,  wife  of  Joseph  W. 
Edmonds.    By  malpractice,  as  is  alleged,  he  caused  her  death. 

1  14  Ind.  595. 


CHOSE  m  ACTION.  339 

Her  husband,  Joseph  W.  Edmonds,  is  still  living.  This  fact 
is  shown  by  the  record  to  have  entered  as  an  element  into 
the  case.  Lewis  B.  Morrison,  as  administrator  of  said  Mar- 
garet, sued  Long  to  recover  damages  for  causing  her  death, 
and  obtained  judgment  of  $2,000. 

The  first  question  is,  will  the  action  lie  ?  It  will  not  lie, 
if  founded  on  the  tort,  upon  the  common  law. 

The  right  of  such  action  on  the  case,  by  that  law,  died  with 
the  person.  Perk.  Pr.  121 ;  Lid.  Dig.  100 ;  1  Hilliard  on 
Torts  (2d  ed.),  93 ;  Carey  v.  The  Bei'kshire  Railroad  Co. 
1  Cush.  478.  And  see  Lynch  v.  Davis,  12  How.  Pr.  R. 
323,  cited  in  Abb.  PI.  375;  and  Reeve's  Dom.  Rel.  377. 
See  this  latter  authority  for  a  suggestion. 

At  common  law  two  actions  lie  for  personal  injuries  to 
married  women,  infants,  and  servants.  One  by  the  husband, 
father,  or  master,  for  the  loss  of  service,  &c.  ;  the  other  by 
the  husband  and  wife,  the  infant  or  servant,  for  the  personal 
injury.  Bartley  v.  Ritchmyer,  4  Comst.  38  ;  Rohalina  v. 
Armstrong,  15  Barb.  249  ;  1  Starkie  on  Slander,  349  ;  Ind. 
Dig.  28 ;  Vari  vJ  Croiv,  7  Blackf.  351. 

In  the  case  at  bar,  then,  the  husband  had  a  right  of  action 
for  the  loss  of  service,  &c.,  sustained  by  him  between  the 
times  of  the  commission  of  the  injury  and  the  death  of  the 
wife  resulting  therefrom.  And  if  that  right  of  action  grew 
out  of  the  breach  of  the  contract  for  skilful  service  on  the 
part  of  the  physician,  it  survived  the  death  of  the  wife.  It 
was  a  chose  in  action.     2  Kent,  351. 

And  if  the  entire  right  of  action  in  the  case  grew  out  of 
breach  of  contract  (the  tort  consisting  in  negligent  execution 
thereof),  then,  it  would  seem,  the  action  by  the  husband, 
with  whom  was  the  contract,  for  the  damages  resulting  from 
its  breach,  must  exhaust  the  right  to  sue  for  that  breach. 
But  if,  at  common  law,  an  action  would  lie  for  the  wrong 
done  to  the  wife,  in  addition  to  the  separate  suit  b}'-  the  hus- 
band for  loss  of  service,  &c.,  where  the  wife  survived;  and, 
further,  if  such  right  of  action  would  be  a  chose  in  action, 
still  our  statute  has  not  vested  it  in  the  wife  any  farther  than 


340  CIVIL   MALPEACTICE. 

tlie  common  law  did,  because  that  statute  only  vests  in  lier 
'  the  personal  property  held  by  her  at  the  time  of  her  mar- 
riage, or  acquired  during  coverture  by  descent,  devise,  or 
gift.'     Acts  of  1853,  p.  67,  §  5. 

And  at  common  law,  as  also  still  by  our  Code,  husband 
and  wife  must  join  in  suits  for  injuries,  by  third  persons,  to 
the  person  of  the  wife.  Perk.  Pr.  pp.  136,  137.  And  the 
husband  can  settle  and  release  such  actions,  at  least  when 
brought  for  injuries  to  the  wife  by  malpractice.  Ballard  v. 
Russell,  33  Maine  R.  196,  cited  in  2  Hill,  on  Torts,  p.  591. 

In  Merrill  v.  Smith,  37  Maine  R.  394,  it  was  held  that, 
under  the  Married  Women's  Act,  the  husband  had  a  right 
to  the  earnings  of  the  wife,  and  to  property  purchased  with 
such  earnings,  as  at  common  law. 

In  no  aspect  of  the  case  at  bar,  then,  could  Mrs.  Edmonds, 
if  surviving,  maintain  a  separate  action  against  Long  for  the 
injury  to  obtain  compensation  for  which  this  suit  is  prose- 
cuted. Can  her  administrator  maintain  such  a  suit  ?  If  so, 
it  is  because  the  action  is  authorized  by  the  Code.  Is  it  thus 
authorized  ?     It  is  enacted  :  — 

'  Sec.  27.  A  father,  oi%  in  case  of  his  death,  or  desertion  of 
his  family,  or  imprisonment,  the  mother  may  maintain  an 
action  for  the  inj  ury  or  death  of  a  child ;  and  a  guardian 
for  the  injury  or  death  of  his  ward.  But  when  the  action  is 
brought  by  the  guardian  for  an  injury  to  his  ward,  the  dam- 
ages shall  enure  to  the  benefit  of  the  ward.'     2  R.  S.  p.  33. 

'  Sec.  784.  When  the  death  of  one  is  caused  by  the  wrong- 
ful act  or  omission  of  another,  the  personal  representatives 
of  the  former  may  maintain  an  action  therefor  against  the 
latter,  if  the  former  might  have  maintained  an  action,  had 
he  lived,  against  the  latter  for  an  injury  for  the  same  act  or 
omission.  The  action  must  be  commenced  within  two  years. 
The  damages  cannot  exceed  five  thousand  dollars,  and  must 
enure  to  the  exclusive  benefit  of  the  widow  and  children,  if 
any,  or  next  of  kin,  to  be  distributed  in  the  same  manner  as 
personal  property  of  the  deceased.'     2  R.  S.  p.  205. 

Personal  property,  it  may  be  remarked,  of  the  deceased, 


CHOSE  IN    ACTION.  341 

in  certain  contingencies  might  go  to  the  husband.  See  13 
Ind.  R.  on  p.  426. 

The  first  point  to  be  settled  here  is,  was  the  death  of  Mrs. 
Edmonds  caused  by  such  a  wrongful  act  as  would  have  fur- 
nished a  ground  of  action  on  account  of  personal  injury  to 
her  had  she  survived  ?     We  hold  the  affirmative. 

The  act  might  have  been  sued  for  in  tort  by  her,  with  her 
husband,  had  she  survived,  as  it  is  now  by  her  representative. 
1  Chit.  PL  134,  135. 

This  being  the  case,  we  inquire  in  whom  would  have  been 
the  right  of  action  ?  It  would  have  been  in  the  husband 
and  wife  jointly,  so  long  as  they  both  lived,  but  would  have 
existed  in  the  wife  alone  on  the  death  of  the  husband,  the 
wife  surviving.  1  Swann's  Pr.  88,  89.  Reeve's  Dom.  Rel. 
63. 

Now  the  above  statute  continues  the  right  of  action  in  the 
personal  representative  of  a  deceased,  where  the  deceased 
might  have  sued  if  living  ;  and  two  views  here  present  them- 
selves to  the  mind  of  the  court  as  to  the  manner  of  this 
survivorship. 

1st.  Where  the  disability  of  coverture  does  not  exist,  the 
right  of  action  exists  in  the  injured  partj^,  and  survives  to 
the  representative  of  such  party  ;  and,  as  death  terminates 
the  coverture,  the  right  of  action  survives  to  the  representa- 
tive alone  of  the  deceased  in  cases  like  the  present.  Some 
of  the  members  of  the  court  hold  this  position. 

2d.  The  right  of  action  may  be  regarded  as  continued  by 
the  statute  in  the  personal  representative  just  as  it  existed 
in  the  deceased.  Hence,  in  this  case,  it  caused  the  right  of 
action  to  survive  to  the  representative  of  the  wife,  as  one  to 
be  prosecuted  jointly  with  the  surviving  husband  ;  though 
under  the  statute  he  would  not  have  a  right  to  settle  the 
suit  nor  control  the  proceeds  of  it,  independent  of  the  ad- 
ministrator ;  as  the  statute  declares  the  use  to  be  made  of 
the  proceeds  of  the  judgment  to  be  recovered. 

Under  this  view  the  conclusion  would  be,  that  the  action 
is  maintainable  ;  but  that  it  should  have  been  brought  in  the 


342  CIVIL   MALPEACTICE. 

joint  names  of  the  husband  and  administrator.  Neverthe- 
less, under  the  Code,  the  non-joinder  of  the  husband  in  this 
case  will  not  be  a  ground  of  reversal,  because  it  was  not  spe- 
cially raised  as  an  objection  below. 

On  the  trial  the  defendant  proposed  to  impeach  the  char- 
acter of  the  plaintiff's  principal  witness,  by  proof  of  a  single 
act  of  immorality.  Permission  to  do  so  was  rightly  refused. 
Proof  should  have  been  offered  of  his  general  character  for 
morality.     See  Shattuch  v.  Myers,  13  Ind.  R.  46. 

In  that  case  particular  acts  of  immorality  on  the  part  of 
a  witness  were  permitted ;  not  for  the  purpose,  however,  of 
impeaching  her  moral  character  as  a  witness.  The  action 
was  for  seduction.  The  father,  who  brought  the  action,  in- 
troduced the  daughter  as  a  witness ;  and  it  was  held  that 
while  in  her  character,  as  witness,  she  could  only  be  im- 
peached in  the  usual  mode,  through  general  questions,  yet, 
in  her  character  as  the  immediately  injured  party,  and  the 
source  of  damages  in  the  suit,  immoral  acts,  showing  that 
source  to  be  impure,  might  be  proved  in  mitigation  of  dam- 
ages. 

The  court,  on  the  trial  of  the  case  at  bar,  correctly  instructed 
the  jury  on  the  question  of  liability  of  the  physician  for  un- 
skilfulness. 

He  was  liable  for  damages  arising  as  well  from  the  want, 
as  from  the  want  of  application,  of  skill. 

'  It  is  the  party's  own  fault  if  he  undertakes  without  hav- 
ing sufficient  skill,  or  if  he  applies  less  than  the  occasion  re- 
quires.' Story  on  Bailments,  §  431.  See  Conner  v.  Win- 
ton,  8  Ind.  R.  315  ;  3  Shars.  Blacks,  p.  122,  and  note,  and 
p.  169. 

On  the  subject  of  damages  the  court  told  the  ]wvj  that  the 
action  was  predicated  '  upon  the  injury  to  the  deceased  ;  and 
the  amount  of  damages  should  be  compensatory  for  the  in- 
jury, short  of  the  loss  of  life,  which  the  law  cannot  estimate  ; 
that  the  jury  might  consider  the  pain  and  suffering  of  the 
deceased,  but  not  the  suffering  of  her  parents,  nor  the  suffer- 
ing nor  loss  of  the  husband  ;  that  vindictive  damages  could 


IN  BATHING.  343 

not  be  given,  nor  an  amount  exceeding  that  laid  in  the  com- 
plaint.' 

On  the  question  of  damages  in  this  class  of  cases  the  com- 
mon law  rule  must  prevail.  Our  statute  differs  materially 
from  that  of  New  York,  under  which  Oldfield  v.  The  New 
York,  ^c.  Co.  4  Kern.  310,  was  decided. 

Where  the  action  is  by  the  husband,  or  master,  or  parent, 
for  their  individual  losses  respectively,  occasioned  by  tortious 
acts  towards  the  wife,  infant,  child,  or  servant,  the  individ- 
ual suffering  of  the  immediate  subject  of  the  wrongful  act 
cannot  be  taken  into  account  in  the  assignment  of  damages. 
See  The  Ohio,  ^c.  Co.  v.  Tindall,  13  Ind.  R,  366. 

The  judgment  is  affirmed,  with  one  per  cent,  damages  and 
costs.^^ 


ALLEGED    MALPRACTICE    IN    BATHING. 

Perionowsky  V.  Freeman  &  another.^ 

"  COCKBURN,  C.  J.,  in  summing  up  the  case  to  the  jury, 
observed  that  our  great  hospitals,  supported  as  they  were  en- 
tirely by  alms  and  voluntary  subscriptions,  could  not  be  sup- 
ported if  they  had  to  engage  a  staff  of  medical  men  sufficient 
to  attend  to  all  the  minor  incidents  or  details  of  medical  or 
surgical  operations  which  might  be  ordered,  such  as  baths. 
It  was  indispensable  that  such  matters  should  be  left  to  the 
nurses,  who  were  necessarily  familiar  with  them  ;  and  it  had 
been  satisfactorily  proved  by  the  testimony  of  some  of  the 
most  eminent  medical  attendants  of  our  hospitals  that  such 
was  the  ordinary  and  usual  course  of  hospital  practice.  That 
being  so,  the  question  was,  whether  the  defendants  had  been 
present  when  the  man  was  put  in  the  bath,  or  were  near 
enough  to  observe  what  had  occurred,  which  it  was  probable 
had  been  greatly  exaggerated.  It  was  well  known  that 
medical  men  were  always  anxious  that  no  unnecessary  pain 
should  be  inflicted  upon  their  patients ;  and  it  was  incredible 
1  •Foster  &  Finlason,  vol.  4,  p.  977. 


344  CIVIL   MALPRACTICE. 

that  they  should  have  allowed  the  man  to  be  treated  in  their 
presence  as  had  been  described  by  him.  This  would  be  to 
impute  to  them  a  gross  and  senseless  inhumanity  which 
passed  all  the  bounds  and  limits  of  probability.  The  defend- 
ants would  not  be  liable  for  the  negligence  of  the  nurses,  un- 
less near  enough  to  be  aware  of  it  and  to  prevent  it.  And 
though  the  plaintiff  might  have  sustained  some  amount  of 
injury,  still  a  verdict  was  not  to  be  given  against  the  defend- 
ants unless  they  were  personally  responsible  for  it.  And 
the  statement  of  the  plaintiff  on  that  point  was  not  sup- 
ported, and  was  distinctly  contradicted.  No  doubt,  persons 
who  went  as  patients  into  hospitals  were  not  to  be  treated 
with  negligence  ;  but  on  the  other  hand,  medical  gentlemen 
who  gave  their  service  gratuitously  were  not  to  be  made 
liable  for  negligence  for  which  they  were  not  personally  re- 
sponsible. Jury  returned  verdict  for  defendants,'''' 


ALLEGED  MALPRACTICE  IN   YACCINATION. 
LanDOjST  V.  Htimpheey.1 

"  Daggett,  J.  There  were  two  objections  made  at  the 
trial:  1.  To  the  admission  in  evidence  of  the  writins:  called 
a  contract,  signed  by  the  defendant  and  other  physicians  of 
the  town  of  Salisbury  ;  2.  To  the  charge  of  the  judge  to  the 

1.  The  writing  was  admitted,  as  part  of  the  proof,  to  show 
that  the  defendant  had,  by  an  arrangement  with  the  other 
physicians,  assumed  the  duty  of  inoculating  the  inhabitants 
of  the  town ;  and  that  the  defendant's  district  embraced  the 
plaintiff.  It  was  offered  in  connection  with  other  proof  by 
parol,  that  this  was  the  agreement  of  the  defendant ;  and 
that  Rollin  Sprague  was  his  agent  in  performing  this  duty. 
The  court  has  found,  that  the  proof  of  the  undertaking  of  the 
defendant  to  inoculate  all  those  who  should  offer  in  his  dis- 
trict was  satisfactory,  without  the  writing, 

1  9  Conn.  209. 


IN   VACCINATION.  345 

The  utmost  that  can  be  objected  to  this  writmg  is,  that  it 
was  unnecessary.  But  surely  it  would  be  worse  than  useless 
to  send  the  cause  again  to  trial  on  such  an  objection.  But 
be  this  as  it  may,  the  facts  in  the  first  count  were  submitted 
to  the  jury,  in  the  charge  of  the  judge.  Suppose  then  that 
there  is  a  material  variance  between  the  writings  set  up  in 
the  two  last  counts  and  the  one  offered  in  proof  ;  if  the 
proof  is  sufficient  to  support  the  first  count  without  the  writ- 
ing, and  that  first  count  be  sufficient,  it  all  stands  well ;  for 
the  verdict  may  be  applied  to  that  count.  In  any  view,  then, 
the  first  objection  cannot  prevail. 

2.  But  an  objection  is  made  to  the  charge.  The  defend- 
ant prayed  the  court  to  charge  the  jury,  that  unless  the 
plaintiff  had  proved  the  defendant  guilty  of  great  and  gross 
negligence  in  vaccinating  the  plaintiff,  she  could  not  recover. 
The  court  told  the  jury,  on  this  point,  that  if  there  was  either 
carelessness,  or  a  loant  of  ordinary  diligence,  care,  and  skill, 
then  the  plaintiff  was  entitled  to  recover.  The  principle 
laid  down  by  the  court  below,  is  entirely  correct.  The  doc- 
trine in  3  Bla.  Comm.  165,  is,  that  any  one  who  undertakes 
any  office,  employment,  duty,  or  trust,  contracts  to  perform 
it  with  integrity,  diligence,  and  skill;  and  if  by  the  want 
of  either  of  those  qualities  any  injury  accrues  to  individuals, 
they  have  their  remedy  in  damages,  by  special  action  on  the 
case.  This  is  the  doctrine  in  Slater  v.  Baker,  2  Wils.  359 ; 
Seare  v.  Prentice,  8  East,  352,  and  Sumner  v.  Utley,  7  Conn. 
Rep.  263.  It  is  believed  that  all  the  elementary  treatises 
agree  substantially.  The  case  was  put  to  the  jury  as  favor- 
ably for  the  defendants  as  the  law  would  justify.  If  in  the 
performance  of  the  operation  there  was  a  want  of  ordinary 
diligence,  dare,  and  skill,  or  if  there  was  carelessness,  then  he 
was  liable. 

The  motion  for  a  new  trial  must  be  denied.^ 

The  other  judges  were  of  the  same  opinion." 

1  In  Crosby  v.  Fitch,  12  Conn.  423,  the  court  say :  "  Statements  in  motions  for 
new  trials,  upon  the  authority  of  a  similar  one  in  Landon  v.  Uumphraj,  9  Conn. 
209,  have  sometimes  been  made  (that  certain  facts  were  satisfactorily  proved  by 


346  CIVIL  MALPEACTICE. 

The  character  of  the  alleged  malpractice,  in  the  case  cited 
supra,  is  not  shown  in  the  record.  The  questions  claiming 
attention  in  vaccination  are : — 

1.  Source  from  which  virus  is  obtained. 

2.  Freshness  of  virus. 

3.  Condition  of  instrument  with  which  the  operation  is 
performed. 

4.  Point  of  body  at  which  virus  is  inserted. 

5.  Results  that  sometimes  follow  the  greatest  skill  and 
care. 

1.  Virus  should  be  taken  from  healthy  subjects,  especially 
from  subjects  free  from  syphilitic  diseases.  When  preserved 
for  future  use  should  be  inclosed  air-tight,  and  have  accom- 
panying a  record  of  name  of  person  from  whom  taken,  time 
when  taken,  and  name  of  physician  by  whom  taken. 

2.  While  it  would  not  be  bad  practice  to  use  virus  qualified 
as  above,  after  several  years,  freshness  will  add  more  cer- 
tainty to  its  action. 

3.  Instruments  should  be  clean. 

4.  The  usual  point  is  at  the  insertion  of  left  deltoid  muscle, 
in  right-handed  subjects,  and  vice  versa.  This  for  the  reason 
that  bad  results  may  follow  the  use  of  good  virus  with  proper 
instruments,  and  the  upper  extremity  of  the  least  use  should 
be  subject  to  the  risk. 

6.  Erysipelas  and  other  severe  forms  of  inflammation, 
which  are  generally  referred  to  diseased  virus,  more  properly 
in  a  vast  majority  of  cases  should  be  referred  to  a  vicious 
condition  of  patients'  system. 

other  testimony),  yet  upon  more  reflection  we  are  led  to  doubt  the  propriety  of 
this  practice,  and  decide  not  to  regard  it  in  future." 


EST  TREATMENT   OF  A  FELON.  347 

ALLEGED   MALPRACTICE   IN  THE   TREATMENT  OF   A   FELON. 

TwoMBLY  &  wife  V.  Leach.  1 

"Merrick,  J.  The  bill  of  exceptions  discloses  several 
questions  arising  both  from  the  admission  of  evidence,  to 
which  the  defendant  objected,  and  from  the  rejection  of  evi- 
dence which  he  offered  to  produce. 

1.  The  inquiry  as  to  the  effect,  upon  the  minds  of  the  wit- 
ness, her  mother,  and  family,  of  the  remarks  said  to  have 
been  made  by  the  defendant  concerning  Dr.  Kimball,  was 
wholly  immaterial. 

There  was  no  evidence  in  the  case  that  the  plaintiffs  ever 
desired  to  call  Dr.  Kimball,  either  for  aid  or  consultation ; 
and  it  does  not  appear  from  anything  stated  in  the  bill  of 
exceptions  that  the  expediency  or  need  of  employing  another 
physician  was  ever  spoken  of,  or  thought  of  by  the  witness, 
the  patient,  or  any  member  of  her  family. 

2.  The  evidence  of  the  effect  of  sugar  of  lead  water  upon 
the  hand  and  wrist  of  the  witness  ought  not  to  have  been 
admitted.  The  propriety  of  its  application  to  the  patient 
and  its  effect  upon  her,  were  the  proper  and  only  material 
subjects  of  inquiry ;  and  its  effect  upon  another  person,  free 
from  the  disease  to  which  the  patient  was  subjected,  was 
quite  irrelevant.  Remedial  agents  may  undoubtedly  very 
often  prove  injurious  if  improperly  used;  and  the  more  effi- 
cient they  are,  the  more  mischievous  are  likely  to  be  the  re- 
sults of  their  misapplication. 

3.  The  testimony  that  the  husband  of  plaintiff  was  an  in- 
valid, dependent  for  his  support  upon  the  labor  of  his  wife, 
should  have  been  excluded.  The  suggestion  in  the  written 
argument  of  the  plaintiff's  counsel,  that  it  was  admissible, 
because  the  action  was  brought  to  recover  damages  for  the 
loss  of  his  wife's  services,  seems  to  be  founded  upon  a  misap- 
prehension of  what  the  allegations  in  the  declaration  are.  It 
certainly  does  not  appear  from  the  bill  of  exceptions  that  the 
action  is  brought  for  the  purpose  stated. 

1  11  Gush.  397. 


348  CIVIL  MALPKACTICE. 

4.  The  testimony  of  Miss  Twombly  respecting  the  time 
when  she  first  heard  of  the  punctured  wound  was  immaterial, 
and  ought  not  to  have  been  received  upon  either  of  the 
grounds  upon  which  it  is  claimed  to  have  been  admissible. 

It  had  no  tendency  to  contradict  any  part  of  the  reported 
testimony  of  Dr.  Jenness  ;  and  it  does  not  appear  that  the 
defendant,  either  before  or  after  his  attendance  upon  the 
patient,  assigned  this  as  the  cause  of  the  disease  in  her  thumb. 

The  physicians  who  were  witnesses  upon  the  trial  ex- 
pressed the  opinion  that  a  punctured  wound  was  one  of  sev- 
eral causes,  which  might  produce  or  result  in  a  whitlow  or 
felon  ;  but  no  evidence  was  offered  to  show  that  the  defend- 
ant did  or  did  not  entertain  a  similar  opinion. 

5.  The  interrogator}^,  '  Is  it  good  medical  practice  to  say 
you  open  a  thumb  to  cut  off  a  nerve  because  it  is  already 
partly  cut  off,'  should  not,  against  objection,  have  been  al- 
lowed to  be  put  to  the  witness.  The  terms  of  the  question 
certainly  involve  no  medical  act  or  practice  whatever,  but 
only  a  reason  assigned  for  an  act.  It  was  so  framed  as  to  be 
likely  to  mislead  the  witness,  and  his  reported  reply  shows 
that  it  did  mislead  him. 

The  physicians  and  surgeons  should  have  been  allowed  to 
testify  in  reply  to  the  several  interrogatories  proposed  by  the 
defendant,  which  were  held  by  the  presiding  judge  to  be  in- 
admissible. 

1.  Evidence  having  been  introduced  on  the  part  of  the 
plaintiffs  that  the  defendant  spoke  of  cutting  off  the  nerve, 
when  he  made  the  incision  into  the  patient's  thumb,  it  was 
competent  for  him,  in  order  to  show  the  signification  of  the 
word,  and  to  explain  what  he  himself  meant  thereby  to 
prove,  that  physicians  and  surgeons,  in  communicating  with 
their  patients  and  other  persons  not  professionally  educated, 
use  it  to  express  either  the  fascia  and  sheath  of  a  tendon,  or 
the  tendon  itself.  Birch  y.  Depeyster^  1  Stark.  R.  210;  1 
Greenl.  Ev.  §  280. 

2.  The  only  objection  taken  hy  the  plaintiffs  to  the  second 
question  was,  that  the  answer  might  tend  to  mislead  the  jury, 


IN  TEEATMENT   OF  A  FELON.  349 

because  it  was  not  pointed  with  sufficient  directness  to  the 
case  treated  b}^  the  defendant.  Yet,  though  not  thus  partic- 
ular in  its  form,  its  object  could  not  have  been  mistaken,  and 
the  general  current  of  inquiry  must  have  made  it  aj)plicable 
to  the  matter  immediately  in  issue.  Besides;  it  would  have 
been  quite  allowable  to  show  in  the  first  place  what  was  the 
general  rule,  and  then  to  add  proof  that  the  case  treated  by 
the  defendant  came  within  it.  Upon  the  question  whether 
it  be  good  medical  practice  to  withhold  from  a  patient  in  a 
particular  emergency,  or  under  given  or  supposed  circum- 
stances, a  knowledge  of  the  extent  and  danger  of  his  disease, 
the  testimony  of  educated  and  experienced  medical  practi- 
tioners is  material  and  peculiarly  appropriate. 

3.  The  objection  of  the  plaintiffs  to  the  third  and  fifth 
questions,  that  the  opinions  sought  for  were  upon  only  a  part 
of  the  case,  ought  not  to  have  prevailed.  The  court  could 
not  foresee  that  the  jury  would  not  take  the  testimony  of 
Luchida  P.  Twombly  to  be  true,  to  the  exclusion  of  the  state- 
ments of  all  other  witnesses,  if  in  fact  there  was  any  diversity 
of  statement  in  relation  to  the  disease,  the  symptoms  mani- 
fested, or  the  treatment  prescribed  by  the  defendant ;  and 
therefore  he  had  a  right  to  -show  that,  assuming  her  whole 
narrative  to  be  strictly,  accurate,  his  management  of  the  case 
was  skilful,  judicious,  and  correct. 

4.  For  a  similar  reason  the  defendant  should  have  been 
permitted  to  propose  the  remaining  question,  which  is  clearly 
within  the  rule  respecting  the  admissibility  of  the  opinion  of 
experts.  The  replies  of  the  medical  witnesses  would  have 
been  merely  evidence  to  be  considered,  and  thereupon  allowed 
the  effect  to  which  they  were  justly  entitled,  and  not,  as  is 
urged  by  the  plaintiffs'  counsel,  a  substitution  of  the  theories 
of  experts  for  the  judgment  of  the  jur}^ 

New  trial  graxitedJ'^ 

It  has  doubtless  occurred  to  all  surgeons  of  a  few  years'  ex- 
perience, that  they  have  at  some  time  been  consulted  for  an 
inflammation  upon  a  finger,  which  they  have  diagnosed  a 


350  CIVIL  MALPEACTICE. 

felon.  Freely  incised  they  find  but  a  little  sanious  pus,  and 
that  just  beneath  the  skin,  and  the  case  has  gone  on  to  be  a 
true  gangrenous  erysipelas  instead  of  a  simple  phlegmonous 
abscess.  The  result  of  the  disease  is  almost  necessarily  more 
or  less  permanent  contraction  of  the  fingers,  if  not  in  entire 
loss  of  one  or  more  fingers  or  loss  of  the  entire  hand. 

Such  cases  do  occur  and  the  highest  skill  of  man  is  not 
sufiicient  to  determine  it,  at  first. 

Lead-water  and  opium  are  of  constant  use  in  the  treatment 
of  inflammations,  and  although  not  agencies  of  very  great 
value,  are  incapable  of  doing  harm,  when  used  in  modera- 
tion. 

Should  patients  be  informed  of  their  true  condition  in 
every  case,  or,  in  other  words,  should  they  be  informed  as  to 
the  probable  result  of  their  illness  ?  They  should  not,  un- 
less it  be  in  exceptional  cases.  Such  information  will  only 
end  in  harm,  both  to  the  patient  and  the  medical  attendant, 
and  should  therefore  be  withheld. 


ALLEGED   MALPRACTICE   IN   TREATMENT   OF   ERYSIPELAS. 
COCHEAN   V.    MiLLER.l 

"  Wright,  J.  I.  It  is  first  objected  that  the  court  erred  in 
overruling  the  appellant's  objection  to  certain  interrogatories 
to  the  witness  Rawson,  and  the  answers  thereto.  Rawson 
was  a  physician.  Plaintiff  claims  that  defendant  was  guilty 
of  negligence  and  malpractice  in  prescribing  for  and  treating 
her  arm.  Rawson,  the  witness,  did  not  see  the  arm  for  some 
time  after  this  treatment. 

It  was  material,  on  the  trial,  to  account  for  the  scar  found 
on  the  limb,  and  the  contraction  of  some  of  the  muscles. 
It  seems,  that  at  the  time  of  the  treatment,  the  plaintiff 
was  thought  to  have  erysipelas.  The  witness  was  asked, 
'  Whether  or  not  the  scar  and  contraction  on  the  arm  could 
not  or  would  not  be  the  legitimate   result  of   erysipelas.' 

1  13  Iowa,  128. 


IN  TREATMENT   OF  ERYSIPELAS.  351 

This  was  objected  to  as  leading  and  irrelevant.  Several  other 
questions  of  the  same  character  were  objected  to  on  the  same 
gromids. 

The  objections  were  correctly  overruled.  In  view  of  the 
issue  made,  no  testimony  could  certainly  be  more  material  or 
relevant  than  that  sought  to  be  elicited  by  the  inquiry.  The 
question  is  far  from  being  well  propounded,  in  view  of  the 
testimony  sought,  but  the  defect  strikes  the  plaintiff  and  not 
the  defendant.  If  any  answer  is  suggested  by  the  inquiry,  it 
is  one  against  the  party  asking  the  question,  and  not  in  his 
favor.  The  witness  could  not  fairly  nor  reasonably  conclude 
that  he  was  expected  to  state  that  something  else  than  erysip- 
elas had  produced  the  scar  and  contraction.  The  question 
was  not  leading. 

II.  It  seems  that  defendant  claimed  that  other  medicines 
were  applied  than  those  prescribed  by  him. 

The  father  of  plaintiff  was  asked :  '  Whether  or  not  he 
would  most  likely  have  known  of  the  application  of  any  other 
medicines  than  those  applied  by  the  defendant,  if  they  had 
been  applied  to  the  arm.'  It  is  objected  that  this  interrog- 
atory called  for  the  opinion  of  the  witness  on  a  matter  of 
fact,  and  was  therefore  objectionable.  The  position  is  not 
tenable.  The  plaintiff,  was  living  in  her  father's  house.  He 
had  abundant  means  of  knowing  the  treatment  she  received. 
His  answer  to  this  question  would  be  no  more  objection- 
able, upon  the  ground  of  containing  an  opinion  instead  of  a 
fact^  than  if  he  stated  that  defendant  had  prescribed  and 
given  medicine  for  the  disease.  The  inquir}'^  is  a  very  com- 
mon one,  and  one  that  may  be  fairly  and  legitimately  made 
under  the  precise  circumstances  as  here  disclosed.  Were 
other  medicines  applied  ?  Plaintiff  says  not,  and  to  maintain, 
so  to  speak,  this  negative,  she  makes  this  inquiry  of  one  who 
had  ample  means  of  knowing. 

III.  The  following  instruction,  given  at  the  request  of  the 
plaintiff,  was  objected  to  :  'If  you  further  find  that  the  con- 
traction and  scar,  and  deformity  of  the  arm  of  plaintiff',  was 
occasioned  by  the  improper  treatment  of  plaintiff  b}'^  defend- 


352  CIVIL   MALPRACTICE. 

ant,  and  the  application  of  improper  remedies,  then  you  are 
not  restricted  to  the  actual  damages  plaintiff  has  sustained, 
but  may  give  such  further  damages  as  in  your  judgment 
would  be  proper  under  the  circumstances  of  the  case.' 

Plaintiff  seeks  to  recover  of  defendant,  not  alone  for  the 
non-fulfilment  of  his  contract,  but  for  his  gross  negligence 
in  the  treatment  of  the  disease  which  he  had  undertaken  to 
treat.  If  there  was  such  negligence  and  inattention  (all  of 
which  the  court  had  previously  explained),  then  the  instruc- 
tion was  certainly  not  objectionable.  The  language  used  is 
not  so  definite  as  it  might  have  been,  and  perhaps  should 
have  been,  if  defendant  had  asked  it.  But  it  does  not  assert 
an  improper  rule  of  damages,  and  this  is  the  extent  of  the 
objection  to  it. 

IV.  If  it  affirmatively  appeared  that  all  of  the  testimony 
was  before  us,  we  should  very  strongly  incline  to  the  conclu- 
sion that  the  verdict  was  not  warranted.  This  is  not  shown, 
however,  and  the  judgment  must  stand.  AffirmedJ^ 


IN  MEDICAX  CASES.  353 


CHAPTER  XIII. 

MALPRACTICE    IN    MEDICAL    CASES. 

Rex  v.  St.  John  Long.^ 

(Old  Bailey,  1830.) 

"Manslaughter.  The  indictment  charged  that  the  de- 
fendant, by  the  application  of  a  certain  inflammatory  and 
dangerous  liquid,  secretly  prepared,  mixed,  and  made  by  him, 
to  the  back  of  one  Catherine  Cashin,  caused  a  mortal  inflam- 
mation and  wound,  under  which  the  deceased  languished 
from  the  3d  of  August  to  the  17th  of  August,  1830,  and  then 
died.  There  were  other  counts,  all  in  nearly  the  same  form ; 
in  some  of  which  the  death  was  stated  to  be  from  the  in- 
flammation and  wound  ;  and .  in  others  from  the  sickness. 
There  was  no  count,  however,  which  expressly  imputed  either 
negligence,  carelessness,  ignorance,  or  want  of  skill  to  the 
defendant. 

Alley ^  for  the  prosecution,  in  his  opening,  stated,  that  he 
imputed  it  to  Mr.  Long,  that,  by  gross  misconduct,  he  had 
produced  an  inflammation  which  had  caused  the  death  of 
Miss  Catherine  Cashin.  The  act  was  done  by  a  servant  of 
Mr.  Long,  by  his  directions ;  but,  as  the  servant  was  only  an 
innocent  agent,  Mr.  Long  was  to  be  considered  as  the  prin- 
cipal, exactly  the  same  as  if  he  had  done  it  himself.  He  did 
not  impute  anything  to  Mr.  Long,  on  the  ground  of  his  not 
being  a  regular  medical  practitioner.  He  asked  for  judg- 
ment against  Mr.  Long,  on  the  broad  principle  that  he  was 
no  more  responsible  than  the  first  medical  practitioner  in  the 
kingdom  ;  but  still,  if  any  man,  by  an  unlawful  act,  should 

1  4  Carr.  &  P.  398. 
23 


354  CIVIL  MALPEACTICE. 

cause  death,  it  was  manslaughter.  This  was  distinctly  laid 
down  by  Mr.  Justice  Foster,  Cr.  L.  261,  who  said  :  '  If  an 
action,  unlawful  in  itself,  be  done  deliberately,  or  Avith  in- 
tention of  mischief,  or  great  bodily  harm  to  particulars,  or  of 
mischief  indiscriminately,  fall  it  where  it  may,  and  death 
ensue,  against  or  beside  the  original  intention  of  the  party, 
it  will  be  murder ;  but  if  such  mischievous  intention  does  not 
appear,  which  is  matter  of  fact,  and  to  be  collected  from  cir- 
cumstances, and  the  act  was  done  heedlessly  and  incautiously, 
it  will  be  manslaughter ;  not  accidental  death,  because  the 
act  upon  which  death  ensued  was  unlawful.' 

There  was  also  another  proposition  of  law,  which  was, 
that  if,  in  the  prosecution  of  any  lawful  act,  anything  were 
done  which  was  imprudent,  irregular,  or  improper,  and  death 
ensued,  it  would  be  manslaughter ;  and  it  was  laid  down  by 
Mr.  Justice  Foster,  Cr.  L.  262,  that  '  It  is  not  sufficient  that 
the  act  upon  which  death  ensueth  be  lawful  or  innocent ;  it 
must  be  done  in  a  proper  manner,  and  with  due  caution  to 
prevent  mischief.'  The  most  common  case  of  this  kind  was 
that  of  a  coachman  driving  fast  in  the  streets.  He  had  no 
bad  intent,  but  the  act  being  done  with  irregularity,  he 
would  be  guilty  of  manslaughter  if  death  ensued.  To  apply 
this  principle  to  the  case  of  medical  men,  it  would  stand  thus  : 
They,  whatever  their  skill,  must  use  due  caution  :  but  there 
was  no  doubt  that  considerable  latitude  must  be  allowed 
them.  In  modern  times,  poisons  were  exhibited  as  medicines 
in  certain  cases;  but  if,  in  the  hurry  of  the  moment,  the 
medical  man  were  to  give  fifty  grains  instead  of  one, 
he  would  be  guilty  of  manslaughter,  if  death  ensued.  So, 
a  surgeon  had  a  right  to  amputate  a  limb  ;  but  if,  in  a 
hurry  to  go  elsewhere,  he  left  the  arteries  imperfectly  se- 
cured, and  death  ensued,  he  would  also  be  guilty  of  man- 
slaughter. It  might  be  said  that,  in  this  case,  the  consent 
of  Miss  Cashin  was  given  to  all  that  was  done ;  but  still,  no 
one  could  permit  another  to  do  that  which  was  criminal. 
Persons  could  not  give  a  consent  to  put  their  own  lives  in 
danger. 


m  MEDICAL  CASES.  365 

It  appeared  from  the  evidence  of  Mr.  Sweetman  tbat  two 
of  the  family  of  Mrs.  Cashin  had  died  of  consumption ;  but 
that  Miss  Cashin,  who  was  twenty-four  years  of  age,  had  en- 
joyed good  health  ;  and  that  Mr.  Long  told  him,  that  he 
(Mr.  L.)  had  informed  a  young  lady,  that  unless  Miss  Cashin 
put  herself  under  his  care,  she  would  die  of  consumption  in 
two  or  three  months  ;  and  that,  on  this  being  communicated 
to  Mrs.  Cashin,  she  placed  her  daughter  under  Mr.  Long's 
course  of  treatment,  hojDing  to  prevent  her  having  a  con- 
sumption. Mr.  Sweetman  also  stated,  that  Mr.  Long  told 
him  that  he  rubbed  a  mixture  on  different  parts  of  the  bodies 
of  his  patients,  and  that  this  had  been  applied  to  Miss 
Cashin.  It  was  proved  by  Mrs.  Roddis,  who  was  also  a  wit- 
ness for  the  prosecution,  that  she,  on  Friday,  the  ,13th  of 
August,  went  with  Miss  Cashin  to  Mr.  Long's,  respecting  a 
wound  on  her  back,  and  that  Miss  Cashin  then  inhaled ;  and 
that  on  the  next  day  Mr.  Long  examined  Miss  Cashin's 
back,  and  said  it  was  in  a  beautiful  state,  and  that  he  would 
give  one  hundred  guineas  if  he  could  produce  a  similar  wound 
on  the  persons  of  'some  of  his  patients.  Mrs.  Roddis  stated, 
that  she  directed  Mr.  Long's  attention  to  a  part  of  the 
wound  which  was  of  a  darker  "appearance,  and  that  he  stated 
that  this  proceeded  from  the  inhaling ;  and  that,  unless  those 
consequences  were  produced,  he  could  expect  no  beneficial 
result.  The  wound  at  this  time  was  about  five  or  six  inches 
square.  Mrs.  Roddis  further  stated,  that  Miss  Cashin  was 
suffering  much  from  sickness,  and  that  she  mentioned  this  to 
Mr.  Long,  who  said  that  it  was  of  no  consequence,  but,  on 
the  contrary,  a  benefit ;  and  that  those  symptoms,  combined 
with  the  wound,  were  a  proof  that  his  system  was  taking 
due  effect ;  and  that  on  Sunday,  the  15th,  Miss  Cashin  hav- 
ing got  worse,  Mr.  Long  said  that  in  two  or  three  day  she 
would  be  in  better  health  than  she  had  ever  been  in  her  life, 
and  spoke  very  confidently  that  the  result  of  his  system 
would  be  to  prolong  her  life  ;  and  that  no  person  could  be 
doing  better  than  Miss  Cashin  was.  At  this  interview  Mrs. 
Roddis  showed  Mr.  Long  the  wound  on  Miss  Cashin's  back. 


856  CIVIL  MALPRACTICE. 

■which  had  extended.  Mrs.  Roddis  also  stated,  that  Mr. 
Long,  on  Sunday,  the  15th,  was  desired  to  do  something  to 
stop  the  sickness  of  Miss  Cashin,  but  that  he  said  he  had  a 
remedy  in  his  pocket,  which  he  would  not  apply,  as  he  knew 
that  sickness  had  been  beneficial ;  and  he  also  stated  on  that 
day,  and  on  Monday,  the  16th,  that  Miss  Cashin  was  doing 
uncommonly  well.     On  Tuesday,  the  17th,  she  died. 

It  was  proved  by  Mr.  Brodie,  the  surgeon,  that  he  saw 
Miss  Cashin  on  Monday,  the  16th,  and  that  her  back  was 
extensively  inflamed,  as  large  as  a  plate ;  and  that,  in  the 
centre  was  a  spot,  as  large  as  the  palm  of  his  hand,  black 
and  dead,  which  was  in  a  sloughing  or  mortified  state.  Mr. 
Brodie  stated,  that  he  did  not  consider  Miss  Cashin  to  be  in 
any  immediate  danger,  and  that  he  thought  that  some  very 
powerfully  stimulating  liniment  had  been  applied  to  her 
back.  In  his  cross-examination  he  said,  that  it  was  very 
common  to  produce  a  counter  irritation,  and  that  the  things 
used  to  make  that  produce  different  effects  on  different  con- 
stitutions ;  but,  in  reexamination,  he  stated,  that  applying  a 
lotion  of  strength  capable  of  causing  the  appearances  he  saw, 
to  a  person  of  the  age  and  constitution  of  the  deceased,  if  in 
perfect  health,  was  likely  to  damage  the  constitution  and 
produce  disease  and  danger.  Mr.  Brodie  also  stated,  that 
the  appearances  on  Miss  Cashin's  back  were  quite  sufficient 
to  account  for  her  death.  Several  medical  men,  who  had 
examined  the  body  of  the  deceased,  stated  that,  on  the  most 
careful  examination,  they  could  not  discover  any  latent  dis- 
ease, or  seeds  of  disease.  A  servant  of  Mr.  Long,  named 
Ann  Dyke,  proved  that  on  the  3d  of  August,  she,  by  direc- 
tion of  Mr.  Long,  rubbed  Miss  Cashin's  back  with  a  liquid, 
but  that  she  did  not  know  what  that  liquid  was.  In  her 
cross-examination,  she  stated  that  Mr.  Long  had  a  great 
many  patients,  many  of  them  persons  of  rank,  and  that  she 
rubbed  Miss  Cashin  with  the  same  liquid  that  was  used  for 
the  other  patients. 

Gurney,  for  the  defence,  proposed  to  ask  whether  a  greater 
effect  was  produced  on  Miss  Cashin,  than  on  other  persons. 


IN  MEDICAL  CASES.  357 

Alley,  for  the  prosecution,  objected  that  this  was  not  evi- 
dence ;  for,  that  unless  the  liquid  was  the  same,  and  the 
person  in  the  same  state  of  constitution,  it  amounted  to 
nothing. 

Gurney.  Nothing  is  more  clear  than  that  this  is  an  un- 
objectionable question.  A  person  is  charged  with  doing 
something  which  has  done  mischief.  Now,  if  I  show  that 
the  same  thing  was  applied  to  other  persons,  and  show  the 
effects  of  it,  it  will  turn  out  that  what  was  the  medicine  of 
health  to  one  was  the  medicine  of  disease  to  another.  I  shall 
show  that  the  same  thing  was  used,  and  shall  call  the  other 
persons  to  prove  that  it  had  a  good  effect  upon  them. 

Alley,  contra.  The  single  question  is,  whether  Mr.  Long 
has  committed  an  offence,  with  respect  to  this  young  woman. 
It  is  not  in  issue  whether  he  has  done  good  or  not  in  other 
cases.  See  the  extent  to  which  this  would  go.  If  he  had 
ten  thousand  patients  dead,  could  I  call  their  friends  to  prove 
that  they  died  under  his  hands  ?  If  I  could  not,  he  cannot 
call  other  patients  on  the  other  side  ;  and  besides,  we  can 
have  no  insight  of  what  was  done  by  him  towards  his  other 
patients. 

Mr.  Justice  Park  and  Mr.  Baron  Garrow  held  that 
the  question  might  be  put,  and  that  the  witness  might  be 
asked  the  names  of  the  persons  who  attended  at  the  same 
time,  and  were  treated  in  the  same  manner  as  Miss  Cashin. 
The  witness  stated  that  the  Marchioness  of  Ormond  and 
Lady  Harriet  Butler  were  at  Mr.  Long's  at  the  same  time  as 
Miss  Cashin ;  and  that  the  same  lotion  was  applied  to  them, 
and  also  to  Mrs.  Ottley,  and  many  others. 

Crurney,  Andrews,  Serjt.,  ^  Adolphus,  for  the  defence, 
submitted  that,  in  point  of  law,  this  was  nothing  like  a  case 
of  manslaughter ;  and  they  cited  and  relied  on  1  Hale's  P. 
C.  429  ;  4  Bl.  Com.  b.  4,  c.  14 ;  and  Rex  v.  Van  ButchelU 
3  Carrington  &  Payne,  629 ;  and  argued  that  it  was  quite 
clear  that  Mr.  Long  intended  to  prevent  or  cure  disease. 

Mr.  Justice  Pakk.  I  am  in  this  difficulty.  I  have  an 
opinion,  and  my  learned  brother  differs  from  me.  I  must 
therefore  let  the  case  go  to  the  jury. 


358  CIVIL  MALPRACTICE. 

Mr.  Baron  Gaekow.  In  Rex  v.  Van  Butchell,  the 
learned  judge  had  very  good  ground  to  stop  the  case,  as 
there  was  no  evidence  as  to  what  had  been  done.  I  make  no 
distinction  between  the  case  of  a  person  who  consults  the 
most  eminent  physician,  and  the  cases  of  those  whose  neces- 
sities or  whose  folly  may  carry  them  into  any  other  quarter. 
It  matters  not  whether  the  individual  consulted  be  the  presi- 
dent of  the  College  of  Physicians,  the  president  of  the  Col- 
lege of  Surgeons,  or  the  humblest  bone-setter  of  the  village ; 
but  be  it  one  or  the  other,  he  ought  to  bring  into  the  case 
ordinary  care,  skill,  and  diligence.  Why  is  it  we  convict  in 
cases  of  death  by  driving  carriages  ?  Because  the  parties 
are  bound  to  have  skill,  care,  and  caution.  I  am  of  opinion, 
that  if  a  person  who  has  ever  so  much  or  so  little  skill  sets 
my  leg,  and  does  it  as  well  as  he  can,  and  does  it  badly,  he  is 
excused  ;  but  suppose  the  person  comes  drunk  and  gives  me 
a  tumbler  full  of  laudanum,  and  sends  me  into  the  other 
world,  is  it  not  manslaughter  ?  And  why  is  that?  Because 
I  have  a  right  to  have  reasonable  care  and  caution. 

Alley.  There  was  a  case  on  the  Northern  Circuit,  where 
a  man,  who  was  drunk,  went  and  delivered  a  woman,  who, 
by  his  mismanagement,  died  ;  and  he  was  sentenced  to  six 
months'  imprisonment. 

For  the  defence,  twenty-nine  witnesses  were  called,  includ- 
ing the  Marchioness  of  Ormond  and  Mrs.  Ottley,  who  stated 
that  they  had  been  patients  of  Mr.  Long,  and  that  they  were 
satisfied  with  his  skill  and  diligence.  One  of  the  witnesses 
said  he  would  never  cease  to  pray  for  Mr.  Long  as  long  as  he 
lived.  Another  (a  lady)  said,  that  she  could  never  be  suffi- 
ciently thankful  to  him  for  what  he  had  done  for  her  family. 
And  another  was  a  surgeon,  who  had  lived  in  Jamaica  for 
thirty-six  years,  and  he  expressed  himself  perfectly  satisfied 
with  Mr.  Long's  treatment  and  conduct. 

Mr.  Justice  Park,  in  summing  up :  The  learned  counsel 
for  the  prosecution  truly  stated,  in  the  outset,  that  whether 
the  party  be  licensed  or  unlicensed  is  of  no  consequence,  ex- 
cept in  this  respect,  that  he  maybe  subject  to  pecuniary  pen- 


IN  MEDICAL  CASES.  359 

alties  for  acting  contrary  to  charters  or  acts  of  Parliament. 
But  it  cannot  affect  him  here.  For  this,  I  have  the  authority 
of  that  great  and  eminent  person,  Lord  Chief  Justice  Hale, 
who  has  expressly  said,  that,  though  physicians  and  surgeons, 
if  they  are  not  licensed,  may  be  subject  to  penalties,  yet  they 
are  not  answerable  criminally  on  that  account.  His  phrase 
is,  '  God  forbid  that  any  mischance  of  this  kind  should  make 
a  person  guilty  of  murder  or  manslaughter.'  And,  therefore, 
licensed  or  unlicensed,  certainly  does  not  signify.  I  agree 
with  my  learned  brother,  that  what  is  called  mala  praxis  in 
a  medical  person  is  a  misdemeanor ;  but  that  depends  upon 
whether  the  practice  he  has  used  is  so  bad  that  everybody 
will  see  that  it  is  mala  praxis.  The  case  at  Lancaster  differs 
from  this.  I  have  communicated  with  Lord  Chief  Justice 
Tindal,  who  tried  that  case,  and  he  informed  me  that  the 
man  was  a  blacksmith,  and  was  drunk,  and  was  so  completely 
ignorant  of  the  proper  steps  that  he  totally  neglected  what 
was  absolutely  necessary  after  the  birth  of  the  child.  That 
certainly  was  one  of  the  most  outrageous  cases  that  ever  came 
into  a  court  of  justice.  I  would  rather  use  the  words  of  my 
Lord  Ellenboeough,  in  the  case  of  Rex  v.  Williamson^  3 
Carr,  &  P.  635.  He  says':  'That  a  medical  man  is  not 
to  be  charged  with  manslaughter  unless  he  has  been  guilty  of 
criminal  misconduct,  arising  either  from  the  grossest  igno- 
rance or  the  most  criminal  inattention.'  And  this  is  impor- 
tant here ;  for,  though  he  be  not  licensed,  yet  experience  may 
teach  a  man  sufficient ;  and  the  question  for  you  will,  by  and 
by,  be,  whether  the  experience  this  individual  acquired  does 
not  negative  the  supposition  of  any  gross  ignorance  or  crim- 
inal inattention.  The  case  quoted  from  the  Institutes  of  Lord 
Coke,  who  lived  upwards  of  two  hundred  years  ago,  occurred 
at  a  time  when  there  were  very  few  cases  of  the  kind,  and 
was  deemed  to  be  a  case  of  manslaughter.  But  I  do  not  der- 
ogate from  his  high  and  illustrious  character,  when,  as  far 
as  criminal  law  is  concerned,  I  set  against  it  the  authority  of 
my  Lord  Chief  Justice  Hale,  on  whom,  when  authority  is 
quoted,  reliance  is  always  placed.     He  says  :  '  If  a  physician 


360  CIVIL  MALPEACTICE. 

gives  a  person  a  potion  without  any  intent  of  doing  him  any 
bodily  hurt,  but  with  an  intent  to  cure  or  prevent  a  disease, 
and,  contrary  to  the  expectation  of  the  physician,  it  kills  him, 
this  is  no  homicide  ;  and  the  like  of  a  chirurgeon.'  And  he 
quotes  the  Year  Book,  3  Edw.  3.  And  he  goes  on  to  say  : 
'  And  I  hold  their  opinion  to  be  erroneous '  (evidently  al- 
luding to  my  Lord  Coke),  '  who  think  if  he  be  no  licensed 
chirurgeon  or  physician  that  occasioneth  this  mischance,  that 
then  it  is  felony  ;  for  physic  and  salves  were  before  hcensed 
physicians  and  chirurgeons.'  And  he  proceeds  further  and 
says  :  '  These  opinions  may  serve  to  caution  ignorant  people 
not  to  be  too  busy  in  this  kind  with  tampering  with  physic, 
but  are  no  safe  rules  for  a  judge  or  jury  to  go  by.'  I  say 
the  same,  that  the  public  weal  is  deeply  interested  in  prevent- 
ing ignorant  persons  from  tampering  with  these  subjects.  It 
is  true,  his  next  reason,  about  the  want  of  surgeons  in  the 
country,  does  not  apply  here  ;  because,  in  London,  all  per- 
sons can  obtain  the  assistance  of  the  best  men,  however  poor 
they  are.  The  question  is,  whether  there  was  gross  ignorance 
in  this  gentleman,  or  scandalous  inattention  in  the  treatment 
of  this  lady.  The  opinion  of  Lord  Chief  Justice  Hale  is  re- 
corded and  adopted  in  Sir  Edward  East's  Pleas  of  the  Crown, 
and  in  Mr.  Justice  Blackstone's  Commentaries.  I  come  now 
to  the  case  of  Van  Butch  ell,  decided  here  only  twelve  months 
ago,  by  Mr.  Baron  Hullock,  of  whom  it  may  be  said,  that  a 
sounder  lawyer  or  a  stronger-headed  man  never  was  known 
in  the  profession.  I  quote  this  case  rather  to  show  you  what 
that  learned  person's  strong  opinion  was  upon  the  general  ques- 
tion, on  the  danger,  not  of  punishing  the  man  found  guilty 
of  gross  negligence,  but  whether  his  practice  can  be  ques- 
tioned whenever  an  operation  happens  to  fail.  He  says  :  '  It 
is  my  opinion,  that  it  makes  no  difference  whether  the  party 
be  a  regular  or  an  irregular  surgeon.'  And  also  :  '  There  is 
no  doubt  that  there  may  be  cases  where  both  regular  and  ir- 
regular surgeons  might  be  liable  to  an  indictment,  as  there 
might  be  cases  where,  from  the  manner  of  the  operation,  even 
mahce  might  be  inferred.'      I  agree  with  him  that  there  may 


IN  MEDICAL  CASES.  361 

be  such  cases  as  those  he  has  first  mentioned ;  and  you  will 
have  to  decide,  by  and  by,  whether  this  case  is  one  of  them 
or  not.  I  wish  also  to  state  to  you  what  Lord  Ellenbor- 
ough  said  in  the  case  of  The  King  v.  Williamson,  which  was 
the  case  of  a  man  who  acted  as  a  man-midwife.  3  Carr. 
&  P.  635.^  Lord  Ellenborough  there  says,  that  from  the 
evidence  it  appeared  that  the  prisoner  had  delivered  many 
women  at  different  times,  and  from  this  he  must  have  had 
some  degree  of  skill.  He  goes  along  with  me  in  thinking 
that  skill  may  be  acquired  by  practice.     That  is  my  opinion 

1  In  the  case  of  Rex  v.  Simpson,  reported  in  Willcock  on  the  Laws  relating  to 
the  Medical  Profession,  Append.  227,  the  prisoner  was  indicted  for  manslaugh- 
ter. It  appeared  that  the  deceased,  a  sailor,  had  been  discharged  from  the  Liv- 
erpool Infirmary  as  cured,  after  undergoing  salivation,  and  that  he  was  recom- 
mended by  another  patient  to  go  to  the  prisoner  for  an  emetic,  to  get  the  mercury 
out  of  his  bones.  The  prisoner  was  an  old  woman,  who  resided  at  Liverpool, 
and  occasionally  dealt  in  medicine.  She  gave  him  a  solution  of  white  vitriol,  or 
corrosive  sublimate,  one  dose  of  which  caused  death  ;  and  she  said  she  had  re- 
ceived the  mixture  from  a  person  who  came  from  Ireland,  and  had  gone  back. 
And  in  that  case,  Mr.  Justice  Batley  said  :  "  I  take  it  to  be  quite  clear,  that 
if  a  person,  not  of  medical  education,  in  a  case  where  professional  aid  might  be 
obtained,  undertakes  to  administer  medicine  which  may  have  a  dangerous  effect, 
and  thereby  occasions  death,  such  person  is  guilty  of  manslaughter.  He  may 
have  no  evil  intention,  and  may  have  a"  good  one,  but  he  has  no  right  to  hazard 
the  consequence  in  a  case  where  medical  assistance  may  be  obtained.  If  he  does 
so,  it  is  at  his  peril.  It  is  immaterial  whether  the  person  administering  the  med- 
icine prepares  it  or  gets  it  from  another."     The  prisoner  was  convicted. 

In  1  Cur.  Hawk.  104,  it  is  said :  "  That  it  hath  been  anciently  holden,  that  if 
a  person  not  duly  authorized  to  be  a  physician  or  surgeon  undertakes  a  case,  and 
the  patient  die  under  his  hand,  he  is  guilty  of  felony;  but  inasmuch  as  the  books 
wherein  this  opinion  is  holden  were  written  before  the  statute  of  23  Hen.  8,  c.  1, 
which  first  excluded  such  felonious  killing  as  may  be  called  wilful  murder  of 
malice  prepense  from  the  benefit  of  clergy,  it  may  be  well  questioned  whether 
such  killing  shall  be  said  to  be  of  malice  prepense  within  the  meaning  of  that 
statute.  However,  it  is  certainly  highly  rash  and  presumptuous  for  unskilful 
persons  to  undertake  matters  of  this  nature  ;  and,  indeed,  the  law  cannot  well  be 
too  severe  in  this  case,  in  order  to  deter  ignorant  people  from  endeavoring  to  get 
a  livelihood  by  such  practice,  which  cannot  be  followed  without  the  manifest 
hazard  of  the  lives  of  those  who  have  to  do  with  them  ;  but  surely  the  charitable 
endeavors  of  those  gentlemen  who  study  to  qualify  themselves  to  give  advice  of 
this  kind  in  order  to  assist  their  poor  neighbors  can  by  no  means  deserve  so 
severe  a  construction  from  their  happening  to  fall  into  some  mistake  in  their 
prescriptions,  from  which  the  most  learned  and  experienced  cannot  always  be 
secure."     Note,  4  Carr.  &  P.  407. 


362  CIVIL  MALPRACTICE. 

here,  and  there  are  twenty-nine  witnesses  all  speaking  to  the 
prisoner's  skill  in  their  cases.  There  is  clear  proof  that  the 
prisoner  did  the  act  which  shortened  Miss  Cashin's  life.  But 
that  does  not  prove  the  case,  unless  you  think  that  there  was 
gross  ignorance  or  inattention  to  human  life  inferred  from  it. 
It  is  evident  he  had  some  information ;  whether  he  drew 
improper  conclusions  from  it  is  not  for  you  or  me  to  say.  It 
seems,  from  Mr.  Sweetman's  evidence,  that  the  disorder  had 
been  in  the  family ;  that  a  son  was  dead,  and  a  daughter  was 
likely  to  die.  The  prisoner  always  said  that  his  remedy 
would  cure  consumption  ;  and,  if  the  disease  had  not  been  in 
the  family,  she  would  not  have  sent  to  him  at  all.  The  pris- 
oner's counsel  could  not  by  law  ask  the  defendant's  witnesses 
any  questions  as  to  their  respective  disorders,  and  the  mode 
of  cure,  as  my  brother  and  I  were  of  opinion  that  it  was 
not  evidence.  All  that  was  evidence  was,  that  he  had  dis- 
played so  much  skill  in  other  cases  as  to  show  that  he  was 
not  that  grossly  ignorant  or  inattentive  person  who  could  be 
guilty  of  manslaughter  according  to  my  Lord  Ellenborough's 
opinion  in  the  case  before  mentioned.  The  refusal  of  the 
prisoner  to  apply  the  medicine,  in  order  to  stop  the  sickness, 
although  he  had  it  with  him,  would  in  my  opinion,  if  wick- 
edly done,  amount  to  murder ;  but  he  mentioned  a  case  in 
which  sickness  had  been  beneficial.  Undoubtedly,  the  result 
proves  a  very  erroneous  opinion  on  his  part ;  and  it  seems 
singular  that  the  restlessness  and  other  circumstances  did  not 
awaken  apprehension  and  call  for  further  measures.  But  the 
question  again  recurs,  whether  this  was  an  erroneous  judg- 
ment of  a  person  who  was  of  general  competency,  though  he 
unfortunately  failed  in  the  particular  instance.  It  appears 
that  he  said,  on  examining  the  wound  on  ]Miss  Cashin's  back, 
that  he  would  give  one  hundred  guineas  if  he  could  produce 
a  similar  wound  in  some  of  his  patients.  This  seems  to  show 
his  confidence  in  his  proceedings.  And  there  is  this  observa- 
tion to  be  made  of  him  throughout,  that  he  seems  to  have 
been  living  in  a  fashionable  part  of  the  metropolis,  and  at- 
tended by  right  honorable  persons  ;  and  it  would  be  against 


IN  MEDICAL  CASES.  363 

his  interest  to  act  ignorantly  and  carelessly.  It  appears, 
with  respect  to  Miss  Cashin,  that  he  did  not  go  to  seek  her 
out,  and  this  will  be  for  yon  to  take  into  your  consideration. 
With  respect  to  the  application  of  the  mixture,  if  he  com- 
manded the  woman  to  use  it,  it  is  the  same  as  if  he  had  used 
it  himself.  Perhaps,  from  the  evidence,  you  will  think  that 
the  act  caused  the  death  ;  but  still  the  question  recurs,  as  to 
whether  it  was  done  either  from  gross  ignorance  or  criminal 
inattention.  No  one  doubts  Mr.  Brodie's  skill,  but  that  is 
not  the  question  ;  it  is  not  whether  the  act  done  is  the  thing 
that  a  person  of  Mr.  Brodie's  great  skill  would  do,  but 
whether  it  shows  such  total  and  gross  ignorance  in  the  per- 
son who  did  it,  as  must  necessarily  produce  such  a  result. 
On  the  one  hand,  we  must  be  careful  and  most  anxious  to 
prevent  people  from  tampering  in  physic,  so  as  to  trifle  with 
the  life  of  man  ;  and,  on  the  other  hand,  we  must  take  care 
not  to  charge  criminally  a  person  who  is  of  general  skill,  be- 
cause he  has  been  unfortunate  in  a  particular  case.  It  is  God 
that  gives,  man,  only  administers,  medicine,  and  the  medicine 
that  the  most  skilful  may  administer  may  not  be  productive 
of  the  expected  effect ;  but  it  would  be  a  dreadful  thing  if  a 
man  were  called  in  question  criminally  whenever  he  happened 
to  miscarry  in  his  practice.  These  are  things  for  your  con- 
sideration when  you  are  considering  whether  a  man  is  acting 
wickedly ;  for  I  call  it  acting  wickedly  when  a  man  is  grossly 
ignorant  and  yet  affects  to  cure  people,  or  when  he  is  grossly 
inattentive  to  their  safety.  With  respect  to  the  evidence 
on  the  part  of  the  prisoner,  all  the  witnesses  that  he  has 
called  have  spoken  as  being  perfectly  satisfied  with  his  skill, 
attention,  and  behavior  in  every  respect.  It  is  observable  of 
several  of  them,  that,  after  their  families  had  been  attended, 
they  put  themselves  under  his  care,  so  satisfied  were  they 
with  his  conduct.  One  of  them  says,  that  he  shall  pray  for 
him  as  long  as  he  lives  ;  and  another,  a  lady,  says  she  can 
never  sufficiently  thank  him  for  what  he  has  done  for  her 
family.  It  is  also  to  be  remarked,  that  one  of  these  witnesses 
is  himself  a  surgeon,  who  lived  for  thirty-six  years  in  a  hot 


364  CIVIL  MALPEACTICE. 

climate,  and  he  expresses  himself  perfectly  satisfied.  You 
will  take  the  whole  case  into  your  consideration,  and  if  you 
think  there  was  gross  ignorance  or  scandalous  inattention  in 
the  conduct  of  the  prisoner,  then  you  will  find  him  guilty ; 
and  if  you  do  not  think  so,  then  your  verdict  will  be  otherwise. 

The  jury,  after  some  deliberation,  found  the  prisoner 
guilty,  and  he  was  subsequently  sentenced  to  pay  a  fine  of 
X250  to  the  king." 

Alley  ^  C.  Philli2:)s,  for  the  prosecution. 

G-ur7iey,  A7idrews,  Serjt.,  ^  Adolphus,  for  the  prisoner. 

Kex  v.  St.  John  Long.^ 

(Old  Bailey,  1831.) 

"  Manslaughter.  The  eight  first  counts  of  the  indict- 
ment stated  that  the  defendant,  on  the  6th  day  of  October 
and  on  divers  other  days  and  times  between  that  day  and 
the  12th  of  Octohev,  feloniously  caused  Colin  Campbell  Lloyd, 
the  wife  of  Edward  Lloyd,  to  inhale  certain  noxious  and  in- 
jurious vapors,  and  that  with  a  certain  corrosive,  inflamma- 
tory, and  dangerous  liquid,  secretly  prepared,  mixed,  and 
made  by  him,  did  rub,  wash,  and  sponge,  &c.,  &c.,  the  breast 
and  chest  of  the  said  Colin  Campbell  Lloyd,  which  made  and 
produced  one  mortal  sore  and  ulcer  in  and  upon  her  breast 
and  chest,  of  the  length  of  sixteen  inches,  of  the  width  of 
nine  inches,  and  of  the  depth  of  two  inches,  by  which  she  be- 
came mortally  sick,  and  languished  till  the  8th  day  of  No- 
vember, and  then  died,  and  that  he  the  said  Colin  Campbell 
Lloyd,  in  manner  aforesaid,  did  kill  and  slay. 

The  ninth  and  tenth  counts  contained  an  allegation,  that 
the  prisoner  applied  the  liquid  to  the  chest,  he  '  well  knowing 
the  said  liquid  to  be  inflammatory  and  dangerous  in  that 
behalf ; '  and  described  the  chest  as  becoming  '  mortally  in- 
flamed, ulcerated,  and  gangrened  all  over  the  same.' 

Plea.     Not  guilty. 

Denman,  A.  G.,  in  opening  the  case  for  the  prosecution, 

1  4  Carr.  &  P.  423. 


IN  MEDICAL   CASES.  365 

stated  that  he  should  not  offer  any  particular  evidence  as  to 
the  inhaling,  as  it  did  not  appear,  as  far  as  they  were  able 
to  judge,  to  be  in  any  way  the  cause  of  the  death,  which 
appeared  to  be  solely  occasioned  by  the  application  of  the 
mixture.  If  the  facts  were  made  out,  the  question  would 
arise  whether  the  prisoner  was  guilty  of  manslaughter.  The 
charge  against  him  was  not  of  acting  with  malice  afore- 
thought, but  of  applying  himself  to  the  treatment  of  the  case 
of  which  he  knew  nothing,  and  of  using  a  most  dangerous 
liquid,  with  the  effect  of  which,  in  the  judgment  of  charity, 
he  must  be  supposed  to  have  been  unacquainted.  If,  with 
gross  ignorance  of  the  subject,  he,  with  the  desire  of  gain, 
undertook  the  case,  and,  in  consequence,  death  ensued,  it 
would  be  clearly  a  homicide,  by  no  means  either  justifiable 
or  excusable.  The  law  admitted  of  no  doubt.  If  a  party, 
grossly  ignorant,  undertook  to  deal  with  deadly  remedies, 
without  knowing  the  effect  they  would  produce,  he  was  an- 
swerable criminally,  if  they  occasioned  death.  The  question 
whether  regularly  educated  or  not,  did  not  apply.  A  regular 
medical  education  might  furnish  a  defence  which  an  unedu- 
cated person  could  not  have,  but  the  absence  of  such  educa- 
tion certainly  did  not  make  a  person  guilty.  The  only  ques- 
tion was,  whether,  in  point  of  fact,  the  prisoner  was  ignorant 
of  that  which  he  was  about,  and  whether  that  ignorance  was 
the  cause  of  his  patient's  death.  If  a  man  in  the  most  ex- 
tensive practice  were  to  take  cognizance  of  a  particular  case, 
of  which,  by  his  treatment,  he  showed  that  he  was  clearly 
ignorant,  his  great  practice  would  not  be  any  excuse. 

The  witnesses  called  on  the  part  of  the  prosecution  were 
Capt.  Lloyd,  the  husband  of  the  deceased ;  Mrs.  Campbell, 
a  relation,  at  whose  house  she  was  staying  ;  Mr.  Campbell, 
Mr.  Vance,  Mr.  Brodie,  and  Mr.  Frankum,  surgeons. 

From  the  examination  in  chief  of  Capt.  Lloyd,  the  follow- 
ing facts  appeared :  The  deceased  for  several  years  had  been 
troubled  occasionally,  when  she  caught  cold,  or  anything  ex- 
cited her,  with  a  choking  sensation  in  the  throat,  for  which 
she  had,  about  three  years  before  her  death,  consulted  a  med- 


366  CIVIL  MALPRACTICE. 

ical  man,  and  for  which  she  was  in  the  habit  of  applying  a 
blister  to  the  throat,  and  afterwards  of  healing  the  wound 
with  a  simple  dressing  of  spermaceti  ointment.  A  son  of  the 
deceased  was  under  the  care  of  Mr.  Long ;  and  on  various 
occasions,  when  the  deceased  attended  with  her  son,  she 
mentioned,  in  conversation  with  Mr.  Long,  the  complaint  she 
had  in  her  throat ;  and  the  conversations  eventually  led  to 
her  putting  herself  under  his  care  on  the  6th  day  of  October, 
1830,  at  which  time  she  was  in  very  good  general  health. 
On  the  3d  of  October  she  had  applied  a  small  blister  to  her 
throat,  but  the  wound  occasioned  by  it  was  nearly  well  on 
the  6th ;  on  the  7th,  8th,  9th,  and  10th,  she  went  to  Mr. 
Long's,  and  on  the  evening  of  the  10th  complained  to  her 
husband  of  a  violent  burning  across  her  chest,  in  consequence 
of  which  he  looked  at  it,  and  found  a  great  redness  across 
her. bosom,  darker  in  the  centre  than  at  the  other  parts  ;  she 
also  complained  of  great  chilliness,  and  shivered  with  cold, 
and  passed  a  xevj  restless  and  uncomfortable  night.  On  the 
11th,  she  was  very  unwell  all  day,  and  complained  of  great 
thirst,  the  redness  was  more  vivid,  and  the  spot  in  the  centi'e 
darker,  round  the  edges  white  and  puffed  up,  and  there  was 
a  dirty  white  discharge  from  the  centre.  Cabbage  leaves 
had  been  applied,  and  when  they  were  removed,  they  ap- 
peared slimy  from  the  discharge ;  the  night  of  the  11th  was 
passed  very  uncomfortably.  On  the  morning  of  the  12th,  the 
redness  on  the  chest  and  breast  was,  if  anything,  greater, 
and  the  spot  in  the  centre  more  puffed  up  and  darker ;  the 
redness  was  more  spread  round  the  edges,  and,  where  it 
stopped,  there  were  blisters  in  the  skin,  apparently  from  the 
discharge ;  the  inner  part  of  the  arms  also  was  very  red 
where  the  discharge  had  run  down  on  each  side.  On  the  12th 
she  was  very  feverish  and  restless,  and  had  no  appetite  ;  and 
in  consequence  of  these  symptoms,  Capt.  Lloyd  went  to  Mr. 
Long  about  the  middle  of  the  day ;  Mr.  Long  asked  why 
Mrs.  Lloyd  had  not  come  to  inhale,  and  go  on  with  the  rub- 
bing ;  Capt.  Lloyd  replied,  it  was  impossible,  she  was  so  very 
ill ;  that  she  had  been  constantly  unwell  since  the  night  of 


IN  MEDICAL  CASES.  367 

the  10th,  and  was  suffering  a  great  deal  of  pain  and  sick- 
ness ;  Mr.  Long  said  he  dare  say  it  would  soon  pass  off ;  it 
was  generally  the  case.  He  was  told  of  the  shivering  and 
chilliness,  and  that  some  hot  wine  and  water  had  been  given 
to  relieve  her  ;  he  said  hot  brandy  and  water  would  have  been 
a  better  thing,  and  to  put  her  head  under  the  bed-clothes.  He 
was  told  that  the  chest  and  breast  looked  very  red  and  very 
bad ;  he  said  that  was  generally  the  case  in  the  j&rst  instance, 
but  it  would  go  off  as  she  got  better,  and  that  Capt.  L.  need 
not  be  uneasy  about  it,  as  there  was  no  fear  or  danger  ;  Capt. 
Lloyd  requested  him  to  call  in  the  evening,  and  then  told 
him  where  Mrs.  Lloyd  was,  which  it  appeared  he  did  not 
Tcnow  before;  in  the  evening  he  came  and  saw  her;  in  the 
course  of  the  day  the  cabbage  leaves  had  been  removed,  and 
a  dressing  of  spermaceti  ointment  put  on  the  chest  instead. 
He  said  he  was  yoxy  sorry  to  see  her  so  unwell,  that  she 
ought  to  have  endeavored  to  get  up  and  come  to  him,  and  he 
would  have  relieved  her  ;  she  said  it  was  impossible,  she  was 
in  so  much  pain  and  suffering,  and  with  her  breast  open  in 
that  way  it  might  be  dangerous.  He  desired  to  look  at  it, 
and  observing  the  dressing,  said,  those  greasy  plasters  had 
no  business  there,  and  she  ought  to  have  continued  the  cab- 
bage leaves.  She  said  she  could  not  bear  the  pain  of  keep- 
ing them  on.  He  then  took  off  his  great  coat,  and  said  he 
would  rub  it  out ;  and  he  turned  up  the  cuff  of  his  coat  as  if 
for  the  purpose  of  doing  so.  She  exclaimed  very  much  with 
fright,  and  expressed  her  wonder  that  he  should  think  of 
rubbing  in  the  state  her  breast  was  in.  She  asked  if  there 
was  no  way  of  keeping  the  leaf  on  without  touching  the 
breast ;  and  he  asked  her  what  she  wished.  She  replied, 
'  To  be  healed.'  He  said,  it  would  never  heal  with  those 
greasy  plasters  ;  that  was  not  the  way  in  which  he  healed 
sores.  He  then  asked  for  a  towel  and  began  dabbing  it  on 
the  breast,  particularly  in  the  centre,  where  the  discharge 
came  from.  He  said  that  old  linen  was  the  best  thing  to 
heal  a  wound  of  that  kind.  She  said  her  skin  and  flesh  were 
very  healthy,  and  always  healed  immediately  with  the  simple 


368  CIVIL  MALPEACTICE. 

dressing  she  had  used.  He  said  old  linen  was  better,  but 
she  might  use  the  dressing  if  she  liked ;  he  saw  no  objection, 
and,  when  it  skinned  over  he  would  rub  it  again.  She  said 
no ;  she  thought  she  could  never  submit  to  rubbing  again,  from 
what  she  was  then  suffering.  He  then  went  away.  On  the 
evening  of  the  following  day  (the  13th)  he  called  again,  but 
Mrs.  Lloyd  would  not  see  him,  and  begged  her  husband  not 
to  allow  him  to  come  up  ;  and  he  never  saw  her  afterwards. 
She  died  on  the  8th  day  of  November,  just  a  month  and  a 
day  after  she  put  herself  under  Mr.  Long's  care. 

On  the  cross-examination  of  Capt.  Lloyd,  he  said  that 
his  son  continued  to  attend  Mr.  Long  for  several  days  after 
the  commencement  of  the  deceased's  illness,  and  on  one  occa- 
sion was  desired  to  tell  Mr.  Long  that  he  need  not  come  to 
see  her,  as  she  was  better.  He  also  added  that  a  person,  de- 
scribing himself  as  a  medical  man,  and  saying  that  he  was 
sent  by  Mr.  Long,  applied  to  see  Mrs.  Lloyd,  and  was  not 
allowed.  He  also  admitted  that  he  had  told  Mr.  Long  that 
he  could  not  pay  fees  for  his  son  until  after  Christmas,  and 
that  Mr.  Long  said  that  would  not  make  any  difference,  he 
might  send  him  and  he  would  attend  him. 

Mrs.  Campbell  stated  that  Mrs.  Lloyd  was  in  a  very  good 
state  of  health,  except  that  her  throat  was  sometimes  trouble- 
some ;  that  she  complained  of  a  stoppage  in  swallowing ;  that 
on  the  10th  of  October,  when  the  shivering  came  on,  the  bed 
was  warmed,  and  Mrs.  Lloyd  put  in,  and  bottles  of  hot  water 
applied  to  her  feet ;  and  that  when  Mr.  Long  went  away, 
after  having  seen  her,  he  did  not  give  any  directions  as  to 
diet,  or  order  her  any  internal  medicine.  It  also  appeared 
from  her  evidence,  that  previous  to  Mrs.  Lloyd's  putting  her- 
self under  the  care  of  Mr.  Long,  she  had  attended  three  days 
at  the  inquest  held  on  the  body  of  Miss  Cashin.^ 

From  the  examination  in  chief  of  Mr.  Campbell,  the  sur- 
geon, it  appeared  that  he  was  the  son  of  Mrs.  Campbell,  at 
whose  house  the  deceased  was  on  a  visit,  and  that  he  first 

1  For  account  of  Long's  trial  for  the  manslaughter  of  Miss  Cashin,  see  pre- 
ceding case. 


IN  MEDICAL  CASES.  369 

saw  the  deceased,  about  four  o'clock  in  the  afternoon  of  the 
12th  of  October,  at  his  mother's  desire  ;  at  which  time  he 
found  a  very  extensive  wound,  covering  the  whole  anterior 
part  of  the  chest,  which,  in  his  opinion,  might  be  produced 
by  any  strong  acid ;  that  the  skin  was  destroyed,  and  lay  in 
folds  on  the  chest,  entirely  separated  ;  that  the  cellular  tissue 
was  partly  destroyed,  and  there  was  a  considerable  discharge 
generally ;  that  the  wound  extended  nearly  from  one  arm- 
pit to  the  other,  and  from  the  throat  down  to  the  pit  of  the 
stomach ;  that  the  skin  was  off  both  breasts,  and  the  centre 
of  the  wound  was  darker,  and  in  a  higher  state  of  inflamma- 
tion than  the  other  parts ;  that  he  removed  the  cahhage  leaves 
and  applied  the  dressing  of  spermaceti  ointment;  that  he 
saw  the  deceased  on  the  13th,  and  afterwards  daily,  several 
times  a  day,  till  her  death ;  that  he  considered  the  wound 
very  dangerous  to  life  when  he  first  saw  it,  but  only  con- 
tinued to  apply  the  spermaceti  dressing  till  the  21st  of  Oc- 
tober, when  he  called  in  the  assistance  of  Mr.  Vance,  who 
continued  at  first  to  apply  the  same  dressing,  only  adding 
to  it  a  litle  calamine  powder ;  that  on  the  second  or  third 
day  of  his  attendance,  Mr.  Vance  applied  a  bread  and  water 
poultice  ;  that  he  (Mr.  Campbell)  at  first  gave  Mrs.  Lloyd 
some  saline  aperient  medicine,  and  when  the  centre  spot, 
and  the  upper  part  of  the  chest  became  gangrenous,  which 
they  did  in  about  a  week,  in  order  to  support  nature,  she 
had  bark,  mineral  acid,  and  quinine.  The  witness  added 
that,  in  his  opinion,  Mrs.  Lloyd  died  of  the  wound  which 
he  first  saw ;  that,  according  to  his  judgment,  it  was  not 
necessary  or  proper  to  produce  such  a  wound,  to  prevent 
any  difficulty  in  swallowing ;  and  that  he  did  not  know  of 
any  disease  in  which  the  production  of  such  a  wound  would 
be  necessary  or  proper.  He  further  stated  that  he  informed 
Mr.  Vance  of  the  course  he  had  pursued,  and  that  nothing 
which  he  or  Mr.  Vance  applied  could  possibly  increase  the 
danger  of  the  patient.  On  his  cross-examination  he  said 
that  he  had  been  in  practice  six  or  seven  years ;  that,  in  the 
course  of  his  practice,  he  had  known  a  common  blister  often 

24 


370  CIVIL  MALPRACTICE. 

produce  very  injurious  effects,  wliich  the  person  who  pre- 
scribed it  never  contemplated ;  and  that  a  medical  man  must 
regulate  his  treatment  as  well  by  the  statements  of  the  pa- 
tient, as  by  external  appearances ;  that  he  did  not  wish  for 
any  additional  assistance  till  gangrene  commenced,  though  he 
feared  it  would  take  place  from  the  first ;  and  that  he  stated 
the  danger  he  apprehended,  very  soon  after  he  was  called 
in,  to  his  mother,  and  Capt.  Lloyd,  and  a  sister  of  the  de- 
ceased, but  that  twice  they  had  some  hopes  of  her  eventual 
recovery.  On  his  reexamination  he  said  that  he  did  not 
consider  it  a  case  of  difiiculty  in  the  treatment ;  that  he  was 
present  at  thei  post-mortem  examination  ;  and  that  the  wound 
did  not  present  the  appearances  which  he  had  ever  seen  pro- 
duced by  a  common  blister.  In  answer  to  questions  from  the 
judge,  he  said  that  he  thought  rubbing  on  the  12th  of  October, 
when  he  first  saw  the  wound,  would  have  increased  the  inflam- 
mation and  could  not  have  been  in  any  respect  beneficial. 

Mr.  Vance's  evidence  agreed  in  substance  with  the  ac- 
count of  the  appearances  of  the  wound,  as  given  by  the  other 
witnesses.  He  stated  also  that  he  approved  of  the  treatment 
pursued  by  Mr.  Campbell.  He  added,  that  he  had  attended 
Mrs.  Lloyd  about  three  years  before  her  death  for  an  affec- 
tion of  the  throat,  which  he  at  first  thought  a  case  of  narrow 
oesophagus,  but  afterwards  ascertained  to  be  globus  hysteri- 
cus :  which  he  described  as  an  inverted  motion  of  the  mus- 
cular fibres  of  the  canal,  very  common  among  women  in  early 
life,  and  of  which  he  had  seen  many  thousand  cases,  but 
never  knew  it  to  produce  death.  He  described  the  appear- 
ance of  the  body  after  death,  and  said  it  was  internally  and 
externally  in  perfect  health,  with  the  exception  of  a  partial 
disease  of  the  thyroid  gland,  and  an  inflammatory  affection 
of  the  lining  of  the  windpipe  (occasioned  from  their  conti- 
guity to  the  ulcer),  and  a  little  narrowness  at  the  entrance  of 
the  oesophagus,  which  he  believed  to  be  congenital,  as  there 
was  no  thickening  of  the  part.  He  attributed  the  death  of 
Mrs.  Lloyd  to  the  extent  of  the  mortification  caused  by  high 
inflammation,  produced  by  some  powerful  application.     On 


IN  MEDICAL  CASES.  371 

his  cross-examination  he  said  that  at  one  time  he  had  hope, 
because  he  found  the  healthy  and  unhealthy  parts  were  sep- 
arating. In  answer  to  questions  from  the  judge,  he  said 
that  the  state  of  the  wound,  as  described,  on  the  12th  of 
October,  might  produce  the  result  stated ;  that  he  thought  a 
man  of  common  prudence  or  skill  would  not  have  applied  a 
liquid  which  in  two  days  would  produce  such  extensive  in- 
flammation, though  all  irritating  external  applications  some- 
times exceeded  the  expectations  of  the  medical  attendant ; 
but  he  should  say  that  such  conduct  was  a  great  proof  of 
rashness  and  of  ignorance.  In  answer  to  a  question  from  a 
juror,  he  stated  that  it  was  very  difficult  to  say  whether,  if 
he  had  been  called  in  on  the  12th,  he  could  have  prevented 
the  death  ;  but,  if  he  were  to  make  a  positive  reply,  he 
should  say  that  it  was  not  likely  that  he  could,  as  it  seemed 
to  be  a  case  of  great  peril  from  the  beginning. 

Mr.  Brodie  stated  that  he  saw  the  deceased,  at  the  re- 
quest of  Mr.  Vance,  on  the  29th  of  October,  and  saw  a  large 
sloughing  ulcer,  which  he  believed  might  have  been  produced 
by  rubbing  a  corrosive  liniment  into  the  parts  on  the  10th  of 
October ;  that  he  did  not  know  of  any  disease  which  should 
lead  a  person  to  apply  a  liniment  with  the  intention  of  pro- 
ducing such  an  effect.  On  his  cross-examination,  he  said : 
'  It  is,  and  always  has  been,  the  practice  to  produce  counter- 
irritation,  and  the  same  application  may  be  beneficial  to  one 
person  and  injurious  to  another,  according  to  habit  and  con- 
stitution. The  effect  of  a  liniment  or  blister,  or  any  other 
external  irritant,  as  we  call  them,  sometimes  goes  beyond  the 
effect  we  intend,  and  the  most  scientific  practitioner  may 
often  be  deceived  in  his  expectation ;  he  cannot  always  cal- 
culate to  a  nicety.  I  do  not  recollect  at  this  moment  any 
instance  in  which  death  has  ensued  from  a  blister  properly 
applied,  but  I  suppose  it  may  happen.  I  suppose  over  ex- 
ercise would  produce  over  irritation  where  a  blister  had  been 
applied.  In  treating  a  wound,  I  should  judge  from  the  ap- 
pearances and  the  state  of  the  patient.  I  think  it  would  be 
desirable,  under  such  circumstances,  to  know  tlie  nature  of 


372  CIVIL  MALPKACTICE. 

the  application ;  but  I  do  not  think  it  would  lead  to  any 
great  difference  in  the  treatment.  In  cases  of  poison,  we  do 
not  apply  the  same  remedy,  especially  where  it  has  been 
taken  into  the  stomach.  As  to  external  applications,  I  do 
not  think  a  surgeon  would  judge  so  much  from  what  had 
been  applied  as  from  the  appearances.  Circumstances  may 
occur  in  which,  when  a  particular  course  is  intended,  a  stran- 
ger's coming  in  and  pursuing  another  and  different  course 
would  produce  mischief.' 

On  his  reexamination,  he  said :  '  In  the  case  of  such  a 
wound  as  has  been  described  and  I  saw,  I  should  not  have 
thought  it  necessary  to  resort  to  the  person  who  had  produced 
it ;  and  I  doubt  whether,  in  this  case,  it  would  have  led  to 
any  useful  knowledge.' 

In  answer  to  questions  from  the  judge,  he  said  :  '  Though 
I  do  not  think  it  absolutely  necessary,  I  should  have  got 
at  the  matter  if  I  could.  I  should  think  that  the  sperma- 
ceti ointment  would  not  certainly  increase  the  danger  of  such 
a  wound  as  that  described  on  the  12th  of  October.  I  never 
saw  such  an  effect  produced  by  an  ordinary  medical  appli- 
cation. There  are  some  constitutions  in  which  very  slight 
remedies  will  produce  dangerous  consequences.  I  have  seen 
one. person  die  of  the  bite  of  a  leech,  and  another  from  the 
sting  of  a  bee.  I  had  no  means  of  knowing  anything  of  this 
lady's  constitution.  I  should  believe,  from  the  evidence  I 
have  heard  of  the  way  in  which  the  inflammation  made 
progress,  that  it  proceeded  rather  from  the  nature  of  the  ap- 
plication than  from  the  constitution  of  the  party ;  but  it  may 
have  depended  on  both.  It  is  usual  to  try  to  ascertain  the 
nature  of  the  constitution.  We  cannot  always  do  it,  but  in 
using  potent  remedies  we  use  great  caution.  I  cannot  form 
a  positive  opinion  whether  the  liniment  was  rashly  used  or 
not ;  but  the  impression  on  my  mind  is,  that  it  was  used 
without  sufficient  caution,  and,  therefore,  either  rashly  or 
ignorantly.  I  have  seen  many  instances  of  inflammation 
from  external  application,  but  I  never  saw  so  extensive  an 
effect  produced  as  in  this  instance.' 


IN  MEDICAL  CASES.  373 

Mr.  Frankum  then  proved  that  he  saw  Mrs.  Lloyd  about 
a  week  before  her  death,  and  was  present  at  the  post-mortem 
examination.  His  opinion  was,  that  she  was  very  healthy, 
and  that  there  was  not,  as  far  as  he  could  judge,  any  pecul- 
iarity of  constitution  which  would  account  for  the  violent 
effects  produced. 

Alley^  for  the  prisoner.  The  facts  alleged  are  not  legally 
established,  admitting,  for  the  present,  that  the  evidence  is 
correct.  Some  of  the  counts  charge  the  death  to  have  been 
occasioned  by  an  ulcer  and  sore  produced  by  an  external  ap- 
lication,  and  also  by  inhaling  of  a  certain  noxious  vapor. 
But  as  no  evidence  has  been  offered  with  respect  to  the  in- 
haling, that  is  not  now  the  subject  of  inquiry.  The  sub- 
stance of  the  other  count  is,  that  the  death  was  occasioned 
by  the  external  application,  which  is  alleged  to  have  been 
improperly  made.  There  is  no  count  imputing  ignorance  or 
want  of  skill,  or  hastiness  or  roughness  of  practice ;  and 
therefore,  there  being  no  allegation  of  that  kind,  no  evidence 
can  be  used  to  influence  the  jury  on  that  subject.  The  rules 
with  respect  to  indictments  are  clear.  In  Ovei^lury's  case, 
Lord  Coke  lays  it  down  that  no  evidence  can  be  given  of  any 
other  cause  of  death  than  that  which  is  stated  in  the  indict- 
ment. It  is  the  mind  that  constitutes  the  individual  a  crim- 
inal, and  not  the  act  done,  according  to  the  old  maxim  of  the 
law,  '  Actus  non  facit  reum  nisi  mens  sit  rea.^  The  indict- 
ment charges  prisoner  with  the  offence  of  manslaughter. 
Now  manslaughter,  in  one  view,  is  an  offence  committed  on 
the  sudden,  in  a  moment  of  intemperate  feeling.  Another 
species  of  manslaughter  is,  where  death  has  been  caused  in 
the  prosecution  of  an  illegal  act.  There  are  also  justifiable 
homicide  and  homicide  per  infortunium;  and  it  is  this  latter 
kind  of  homicide  of  which  the  act  complained  of  consists. 
Where  a  man,  in  an  honest  mind,  does  an  act  which  he 
thinks  right,  and  death  ensues,  it  is  homicide  per  infortu- 
nium. Lord  Coke's  dictum  as  to  unlicensed  practitioners  is 
not  law.  Sir  Matthew  Hale  repudiates  it,  and  lays  down 
the  correct  rule  on  the  subject;  and  on  his  rule  it  is  that  I 


374  CIVIL  MALPEACTICE. 

found  my  defence  of  the  prisoner.     That  rule  is  adopted  by- 
all  the  text  writers  on  the  criminal  law.     It  is  that  where  a 
potion  is  given  without  any  intent  of  doing  bodily  hurt,  but 
with  an  intention  to  cure  or  prevent  a  disease,  and,  contrary 
to  expectation,  it  produces  death,  it  is   not  manslaughter. 
Such  a  charge  as  that  against  the  prisoner  has  never,  by  the 
common  law,  been  considered  to  be  manslaughter.     There  is 
a  modern  case  upon  the  subject,  but  I  believe  it  is  a  solitary 
case,  and  I  should  be  inclined  very  much  to  doubt  whether 
it  is  quite  correct.     The  statute  34  &  35  Hen.  8,  c.  8,  which 
is  entitled  '  A  bill,  that  persons  being  no  common  surgeons 
may  administer  medicines,  notwithstanding  the  statute,'  af- 
ter referring  to  an  act  of  the  3d  Hen.  8,  subjecting  to  pen- 
alties persons  who  should  practise  as  physicians  or  surgeons 
without  being  examined  and  admitted,  goes  on  to  say, '  Sith- 
ence  the  making  of  which  said  act  the  company  and  fellow- 
ship of  surgeons  of  London,  minding  only  their  own  lucres, 
and  nothing  the  profit  or  ease  of  the  diseased  or  patient,  have 
sued,  troubled,  and  vexed  divers  honest  persons,  as  well  men 
as  women,  whom  God  hath  endued  with  the  knowledge  of 
the  nature,  kind,  and  operation  of  certain  herbs,  roots,  and 
waters,  and  the  using  and  ministering  of  them  to  such  as  be 
pained  with  customable  diseases,  as  women's  breasts  being 
sore,  a  pin  and  the  web  in  the  eye,  uncomes  of  hands,  burn- 
ings, scaldings,  sore   mouths,  the  stone,  strangury,  saucelin, 
and  morphew,  and  such  other  Hke  diseases,  and  yet  the  said 
persons  have  not  taken  anything  for  their  pains  or  cunning, 
but  have  ministered  the  same  to  poor  people  only,  for  neigh- 
borhood and  God's  sake,  and  of  pit}?-  and  charity.     And  it  is 
now  well  known  that  the  surgeons  admitted  will  do  no  cure 
to  any  person  but  where  they  shall  know  to  be  rewarded 
with  a  greater  sum  or  reward  than  the  cure  extendeth  unto ; 
for   in    case    they  would  minister  their  cunning  unto    sore 
people  unrewarded,  there  should  not  so  many  rot  and  perish 
to  death  for  lack  or  help  of  surgery,  as  daily  do ;  but  the 
greatest  part  of   surgeons  admitted  been  much  more  to  be 
blamed  than  those  persons  that  they  trouble.'     It  further 


m  MEDICAL  CASES.  376 

states  that,  '  although  the  most  part  of  the  persons  of  the 
said  craft  of  surgeons  have  small  cunning,  yet  they  will  take 
great  sums  of  money,  and  do  little  therefor,  and  by  reason 
thereof  they  do  oftentimes  impair  and  hurt  their  patients 
rather  than  do  them  good.'  In  consideration  whereof,  and 
for  the  ease,  &c.,  and  health  of  the  king's  poor  subjects,  &c., 
it  proceeds  to  enact  that  it  shall  be  lawful  to  every  person 
having  knowledge  and  experience  of  the  nature  of  herbs,  &c., 
to  practise,  use,  and  minister  them  without  suit  or  vexation. 

The  question  is  one  of  very  great  importance.  A  man 
who  has  to  amputate  a  limb  will  have  the  knife  tremble  in 
his  hand,  if  he  is  to  be  liable  when  he  has  acted  with  a  good 
intent.  The  provisions  of  the  Stat.  34  &  35  Hen.  8,  c.  8, 
show  that  every  man  has  a  right  to  practise,  and  if  death 
ensues  when  the  intention  is  good,  the  party  cannot  be  guilty 
of  manslaughter.  The  prisoner  cannot  call  any  witness  to 
prove  what  the  liquid  was,  as  its  composition  is  known  only 
to  himself;  and  indeed  it  is  alleged  in  the  indictment  to  have 
been  secretly  prepared  by  him.  It  cannot  be  ruled  that, 
where  the  mind  is  pure,  and  the  intention  benevolent,  and 
there  are  no  personal  motives,  such  as  a  desire  of  gain,  if  an 
operation  be  performed,  of  the  mode  of  performing  which  no 
evidence  is  given,  the  party  is  responsible.  In  East's  Pleas 
of  the  Crown,  vol.  1,  p.  264,  the  learned  writer  says:  'If  one 
who  is  no  regular  physician  or  surgeon  administer  medicine 
or  perform  an  operation,  which,  contrary  to  expectation, 
kills,  it  was  formerly  holden  manslaughter.  But  Lord  Hale 
denies  this  yerj  properly ;  it  is  rather  misadventure,  —  though 
this  doubt  should  make  ignorant  people  cautious  how  they 
interfere  in  such  matters.  But  if  one  give  physic  to  another 
in  sport,  of  which  he  dies,  it  will  be  manslaughter,'  &c.  The 
case  of  the  King  against  Van  Butchell,  reported  in  3  C.  & 
P.  629,  is  also  a  point  on  this  subject. 

Bayley,  B.  We  are  aware  of  all  these  cases.  There  are, 
in  my  mind,  contradictory  authorities  ;  and  I  propose,  with 
the  assent  of  my  learned  brothers,  to  reserve  the  point  for 
you,  if  the  prisoner  should  be  convicted.     I  agree  with  my 


376  CIVIL  MALPRACTICE. 

Lord  Hale,  and  do  not  think  that  there  is  any  difference 
between  a  licensed  and  an  unlicensed  surgeon.  It  does  not 
follow  that,  in  the  case  of  either,  an  act  done  may  not 
amount  to  manslaughter.  There  may  be  cases  in  which  a 
regular  medical  man  may  be  guilty  ;  and  that  is  all  that 
Lord  Hale  lays  down,  —  and  that  may  be  laid  out  of  the 
question  in  this  case.  But  the  manner  in  which  the  act  is 
done,  and  the  use  of  due  caution,  seems  to  me  to  be  material. 
Mr.  Justice  Foster,  in  his  Criminal  Law,  p.  263,  speaking  of 
a  person  who  happens  to  kill  another  by  driving  a  cart  or 
other  carriage,  says,  '  If  he  might  have  seen  the  danger, 
and  did  not  look  before  him,  it  will  be  manslaughter  for 
want  of  due  circumspection.^  And  there  is  also  a  passage 
in  Bracton  to  the  like  effect.  But  all  that  I  mean  to  say 
now  is,  that,  there  being  conflicting  authorities,  and  the  im- 
pression on  our  minds  not  being  in  your  favor,  I  propose  to 
reserve  the  point.  As  to  the  indictment  not  being  supported 
by  the  evidence,  one  of  the  allegations  is  that  the  prisoner 
feloniously  applied  a  noxious  and  injurious  matter.  And 
there  is  no  doubt,  if  the  jury  should  be  of  opinion  against  the 
prisoner,  that  the  facts  proved  will  be  sufficient  to  warrant 
their  finding  that  the  ^ri^onev  feloniously  did  the  act.  For 
if  a  man,  either  with  gross  ignorance  or  gross  rashness,  ad- 
ministers medicine  and  death  ensue,  it  will  be  clearly  felony. 
Alley.  Then  I  submit  that,  in  this  case,  as  in  a  case  of 
larceny,  there  must  be  a  trespass  proved.  Trespass  is  the 
foundation  stone  of  felony.  It  is  not  proved  that  any  fraud 
has  been  practised  by  the  prisoner  to  get  the  patient  under 
his  care.  Nor  has  there  been  any  avaricious  seeking  after 
fees.  If  there  had  been,  it  might  have  been  evidence  to 
show  the  existence  of  trespass ;  but  it  was  not  so,  according 
to  the  testimony  of  the  husband.  The  prisoner's  conduct 
showed  that  his  intentions  were  good  and  honest.  If  he  had 
solicited  the  lady's  attendance,  then  a  wrong  intention  might 
be  inferred,  and  he  would  be  responsible,  But  it  seems  that 
she  attended  with  her  son,  and  saw  the  number  of  patients 
attending,  and  applied  to  the  prisoner  to  benefit  her.     As  to 


IN  MEDICAL  CASES.  377 

a  man's  driving  a  cart,  as  mentioned  by  Mr.  Justice  Foster, 
if  he  is  going  too  quick,  he  is  liable  ;  if  he  is  going  at  a 
proper  pace,  he  is  not  responsible.  If  the  rule  I  contend  for 
is  not  to  be  adopted,  the  good  Samaritan  must  close  his  hand, 
and  those  benevolent  persons  who  are  in  the  habit  of  admin- 
istering to  the  comforts  of  the  sick  must  cease  to  attend  the 
death-beds  of  the  poor.  There  must  be  a  trespass  in  every 
felony,  —  and  trespass  is  not  to  be  inferred.  Upon  this 
principle  it  was  that  Mr.  Baron  Hallock  decided  in  the  Case 
of  Van  Butchell.  Suppose  that  instead  of  Dr.  Jenner  some 
cow-boy  had  found  out  vaccination,  and  exhibited  the  virus 
on  certain  children,  and  they  had  done  well,  and  on  others 
and  they  had  died,  would  he  have  been  subject  to  be  called 
an  impostor,  and  charged  with  introducing  a  virus  that  was 
injurious  ?  Dr.  Jenner  persevered,  and  was  rewarded. 
And  why  should  not  Mr.  Long  persevere ;  why  should  he, 
without  remuneration,  give  up  his  secret  any  more  than 
Dr.  Jenner,^  or  than  Dr  James,  who  invented  the  powder 
which  goes  by  his  name  ?  The  Case  of  Van  Butchell  is  all 
fours  with  the  present.  The  learned  judge  stopped  that  case 
because  there  was  no  evidence  of  how  the  operation  was  per- 
formed ;  and  here  there  is  not  any  evidence  to  show  the 
mode  in  which  the  application  was  made. 

Bayley,  B.  In  this  case,  we  may  judge  of  the  thing  by 
the  effect  produced,  and  that  may  be  evidence  from  which 
the  jury  may  say  whether  the  thing  which  produced  such  an 
effect  was  not  improperly  applied. 

Boll  AND,  B.  When  you  pass  the  line  which  the  law 
allows,  then  you  become  a  trespasser. 

Adolphus   was  heard    shortly,  and   contended  that  if    a 

1  Dr.  Jenner  did  not  keep  the  method  and  means  of  vaccination  a  secret,  nor 
did  he  attempt  to.  Nor  did  he  attempt  having  it  patented,  but  as  soon  as  he 
had  completed  his  discovery,  published  it  —  made  it  free  to  all  mankind.  When 
quinine  was  first  discovered,  the  mode  of  preparing  it  was  immediately  made 
known.  So,  too,  with  hydi'ate  of  chloral  and  chloroform.  The  attempt  to 
patent  ether  and  the  process  of  etherization  met  with  a  prompt  rebuke.  The 
really  valuable  discoveries  in  medicine  have  never  been  nor  never  will  be  kept  ' 
secret,  for  they  have  been  and  will  be  made  by  minds  that  are  far  above  those 
found  among  quacks  and  charlatans. 


378  CIVIL  MALPRACTICE. 

person's  intention  was  only  to  be  helirful,  he  could  not  be 
guilty  of  manslaughter. 

Alley  then  said,  that  if  his  lordship  thought  it  would  be 
most  conducive  to  the  interests  of  justice  that  the  point 
should  be  reserved,  he  would  yield  to  that  opinion  without 
further  observation. 

Bayley,  B.  If  I  had  a  clear  opinion  in  your  favor,  or  if 
my  brothers  had,  or  if  we  had  any  reason  to  think  that  other 
judges  were  of  a  different  opinion,  it  would  become  our  duty 
to  give  an  opinion  here,  and  prevent  the  case  from  going  to 
the  jury.  But,  feeling  as  I  do,  nothwithstanding  all  I  have 
heard  to-day,  and  myself  and  my  brothers  having  had  our 
attention  directed  to  the  law  before  we  came  here,  I  think  it 
right  that  the  case  should  go  to  the  jury.  I  think  if  the  jury 
shall  find  a  given  fact  in  the  way  in  which  I  shall  submit  it 
to  them,  it  will  constitute  the  crime  of  feloniously  adminis- 
tering, so  as  to  make  it  manslaughter.  I  do  not  charge  it  on 
ignorance  merely,  but  there  may  have  been  rashness.  And 
I  consider  that  rashness  will  be  sufficient  to  make  it  man- 
slaughter. As,  for  instance,  if  I  have  the  toothache,  and  a 
person  undertakes  to  cure  it  by  administering  laudanum,  and 
says,  '  I  have  no  notion  how  much  will  be  sufficient,'  but 
gives  me  a  cupful,  which  immediately  kills  me  ;  or,  if  a  per- 
son prescribing  James's  powder  says,  '  I  have  no  notion  how 
much  ought  to  be  taken,'  and  yet  gives  me  a  table-spoonful, 
which  has  the  same  effect ;  such  person  acting  with  rashness 
will,  in  my  opinion,  be  guilty  of  manslaughter.  With  re- 
spect to  what  has  been  said  about  a  willing  mind  in  the 
patient,  it  must  be  remembered  that  a  prosecution  is  for  the 
public  benefit,  and  theVillingness  of  the  patient  cannot  take 
away  the  offence  against  the  public. 

The  prisoner  in  his  defence  said  that  the  prosecution  was  in 
reality  that  of  the  medical  gentlemen,  who  did  not  prosecute 
other  medical  men,  but  atacked  him,  because  his  patients  were 
the  incurables  of  the  faculty,  and  because  he  cured  consump- 
tives, Avbich  they  were  never  able  to  do.  He  contended  that  it 
was  not  j  ust  to  render  him  responsible  when  the  death  occurred 


IN  MEDICAL  CASES.  379 

while  Mrs.  Lloyd  was  under  the  care  of  others,  and  neither 
he  nor  his  medical  friend  was  allowed  to  do  anything  for  her. 
He  also  charged  Mr.  Campbell  with  unskilfulness  in  his  treat- 
ment of  the  case,  and  argued,  that  if  the  mixture  had  been  of 
the  injurious  nature  suggested,  it  must  have  produced  morti- 
fication much  earlier  than,  according  to  the  evidence,  it  did. 

He  further  stated,  that  he  could  prove,  if  it  were  necessary, 
that  he  had  studied  anatomy,  and  was  acquainted  with  the 
constitution  of  the  human  frame. 

For  the  defence,  twenty-six  witnesses  were  called,  who 
spoke  in  the  highest  terms  of  the  prisoner's  skill,  care,  and 
attention.  Most  of  them  had  been  his  patients,  and  a  few 
had  been  witnesses  of  his  treatment  of  some  near  relations. 
Many  of  them  not  only  gave  their  own  opinion,  but  also 
stated  the  general  reputation  he  had  among  other  persons 
who  attended  at  the  same  time.  One  of  them  said,  '  His  at- 
tention cannot  be  exceeded  ;  I  have  found  more  skill  in  him 
and  derived  more  benefit  from  him  than  all  the  doctors  I 
ever  consulted.^'  Another  said,  '  I  think  him  the  kindest, 
the  most  attentive,  and  the  most  skilful  person  I  ever  met 
with.'  Another  said,  '  I  have  reason  to  praise  his  skill,  for 
he  cured  my  child  of  consumption  ;  and  I  have  reason  to 
praise  his  kindness,  for  he  only  took  half  fees.'  Several  said 
that  they  had  known  him  .cure  persons  who  had  resorted  in 
vain  to  other  medical  men. 

Bayley,  B.,  in  summing  up,  said :  The  indictment 
charges  the  prisoner  as  having  caused  the  death  of  Mrs. 
Lloyd,  by  the  application  of  a  certain  liquid,  and  the  points 
for  your  consideration  will  be :  first,  whether  Mrs.  Lloyd 
came  to  her  death  by  the  application  of  the  liquid ;  and  sec- 
ondly, whether  the  prisoner,  in  applying  it,  has  acted  felo- 
niously or  not.  To  my  mind,  it  matters  not  whether  a  man 
has  received  a  medical  education  or  not ;  the  thing  to  look  at 
is,  whether  in  reference  to  the  remedy  he  has  used,  and  the 
conduct  he  has  displayed,  he  has  acted  with  a  due  degree  of 
caution^  or,  on  the  contrary,  has  acted  with  gross  and  im- 
proper rashness  and  want  of  caution.     I  have  no  hesitation 


380  CIVIL  MALPRACTICE. 

in  saying  for  your  guidance,  that  if  a  man  be  guilty  of  gross 
negligence  in  attending  to  his  patient,  after  he  has  applied  a 
remedy,  or  of  gross  rashness  in  the  application  of  it,  and 
death  ensues  in  consequence,  he  will  be  liable  to  a  conviction 
for  manslaughter.  There  is  no  pretence  in  the  present  case 
for  saying  that  there  was  any  degree  of  negligence  after  the 
application  of  the  liquid,  because  it  seems  that  the  prisoner 
did  not  know  where  Mrs.  Lloyd  lived ;  and  when  he  was 
sent  for  on  the  12th,  he  went,  but  was  almost  immediately 
dismissed,  and  was  not  allowed  to  see  her  afterwards.  If 
you  shall  be  of  opinion  that  the  prisoner  made  the  application 
vnth  a  gross  and  culpable  degree  of  rashness,  and  that  it  was 
the  cause  of  Mrs.  Lloyd's  death,  then,  heavy  as  the  charge 
against  him  is,  he  will  be  answerable  on  this  indictment  for 
the  offence  of  manslaughter.  There  was  a  considerable  in- 
terval between  the  application  of  the  liquid,  and  the  death 
of  the  patient ;  yet,  if  you  think  that  the  infliction  of  the 
wound  on  the  10th  of  October  was  the  cause  of  death,  then  it 
is  no  answer  to  say,  that  a  different  course  of  treatment  by 
Mr.  Campbell  might  have  prevented  it.  You  will  consider 
these  two  points  :  first,  of  what  did  Mrs.  Lloyd  die  ?  You 
must  be  satisfied  that  she  died  of  the  wound  which  was  the 
result  of  the  application  made  on  the  10th  of  October ;  and 
then,  secondly,  if  you  are  satisfied  of  this,  —  whether  the 
application  was  a  felonious  application.  This  will  depend 
upon  whether  you  think  it  was  gross  and  culpable  rashness 
in  the  prisoner  to  apply  a  remedy  which  might  produce  such 
effects,  in  such  a  manner  that  it  did  actually  produce  them. 
If  you  think  so,  then  he  will  be  answerable  to  the  full  extent. 
His  lordship  read  over  the  evidence,  requesting  the  jury  to 
apply  it,  as  he  proceeded,  to  the  two  points  he  had  mentioned ; 
and,  after  some  deliberation,  they  returned  a  verdict  of 

JVot  guilty. 

Denman,  A.  G.,  Whately  ^  Talfourd^  for  the  prosecution. 

Alley ^  Adolphus,  C.  Phillips  ^  Clarkson,  for  the  prisoner." 

It  may  seem  unnecessary  to  have  presented  both  cases  of 

Hex  V.  Long  in  this   connection.     The   fact,  however,  that 


IN  MEDICAL  CASES.  '        381 

eacli  charge  was  separate  and  distinct  from  the  other,  the 
charges  being  in  each  of  precisely  the  same  gravity  and  char- 
acter ;  the  malpractice  being  upon  two  patients  as  nearly 
alike  as  two  patients  could  be ;  the  medical  application 
being  in  each  alike,  the  effect  produced  similar,  and  the  re- 
sult in  each  the  same,  being  death ;  tried  before  different 
judges  and  juries,  with  the  prosecuting  counsel  in  the  first 
case  being  the  counsel  for  the  defence  in  the  second ;  with 
favorable  instructions  from  the  court  in  the  first  case,  result- 
ing in  an  adverse  verdict  from  the  jury  ;  with  unfavorable  in- 
structions from  the  court  in  the  second  case,  with  a  verdict 
of  acquittal  from  the  jury, — rendered  it  eminently  proper 
that  the  two  cases  should  be  rendered  in  full  and  placed  in 
their  order  of  sequence  in  juxtaposition. 

Peck  v.  Mabtin.^ 

"  WOEDEN,  J.  Action  by  Martin  against  Peck.  Answer, 
trial ;  verdict,  and  judgment  for  the  plaintiff,  a  motion  in 
arrest  being  overruled. 

The  only  question  in  the  case  arises  on  the  ruling  upon 
the  motion  in  arrest.    The  complaint  is  as  follows,  namely :  — 

'  Andrew  Martin,  plaintiff  in  this  suit,  complains  of  Samuel 
W.  Peck,  defendant,  and  says,  that  on,  &c.,  the  said  defend- 
ant was  a  practising  physician  and  surgeon  at  said  county, 
and  that,  as  such  physician  and  surgeon,  he  was  called  upon 
by  the  plaintiff  to  visit  one  Mary  Ann  Martin,  of  the  age  of 
ten  years,  the  child,  daughter,  and  servant  of  the  plaintiff, 
who  was  then  sick  ;  anu  the  said  defendant  was  then,  and  on 
divers  days  and  times  after  said  last  mentioned  day,  and 
(before)  the  time  of  bringing  this  suit,  requested  by  said 
plaintiff  to  administer  the  proper  medicines  and  treatment, 
for  the  cure  of  the  said  Mary  Ann,  the  child,  daughter,  and 
servant  of  the  plaintiff.  And  the  said  plaintiff  says,  that  the 
said  defendant,  on  the  days  and  times  aforesaid,  undertook, 
as  such  physician  and  surgeon,  to  administer  medicine  to  the 

1  17  Ind.  R.  115. 


382  CIVIL  MALPEACTICE. 

said  Mary  Ann,  child,  &c.,  of  the  plaintiff.  And  the  plain- 
tiff avers  that  the  defendant  so  negligently,  unskilfully,  and 
un  profession  ally  managed  and  treated  said  child,  that  she 
became,  by  reason  thereof,  imbecile,  speechless,  and  wholly 
insane ;  and  defendant  did  then  and  there  so  negligently, 
unskilfully,  and  unprofessionally  administer  said  medicines, 
and  then  and  there  also  gave  and  administered  such  poisonous, 
noxious,  and  improper  drugs  to  the  said  Mary  Ann,  that  she 
was  thrown  into  spasms,  and  thereby  became  demented,  and 
lost  all  her  mind  and  reason,  and  powers  of  speech,  and  all 
her  mental  and  physical  powers  have  failed  her.  During  all 
of  which  time  the  plaintiff  lost,  and  has  been  deprived  of, 
the  service  of  his  said  daughter  and  servant,  and  of  all  the 
benefit  and  advantage  which  might,  and  would  otherwise 
have  arisen  and  accrued  to  him,  from  such  service,  as  well  as 
the  comfort  of  her  society,  wherefore,'  &c. 

The  objection  to  the  complaint  is  thus  stated  in  the  brief 
of  counsel  for  appellant :  '  This  complaint  is  founded  on  con- 
tract ;  and  even  if  it  be  considered  as  founded  on  tort,  still, 
in  an  action  on  the  case,  founded  on  an  express  or  implied 
contract,  as  against  an  attorney,  &c.,  the  declaration  must 
correctly  state  the  contract,  or  the  particular  duty  or  con- 
sideration, from  which  the  liability  results,  and  on  which  it  is 
founded.  1  Chit.  PI.  384.  In  short,  we  hold  that  in  this 
case  the  declaration  must  state  a  valid  contract,  either  by 
alleging  the  duty  or  by  stating  the  consideration,  on  which 
Peck  undertook,  &c.  No  such  duty  or  consideration  is  stated 
in  the  complaint,  and  for  this  omission  we  contend  tliat  it  is 
materially  defective.  We  believe  no  authority  can  be  found 
to  the  contrary.' 

In  England,  '  a  physician,  or  medical  practitioner  affecting 
to  be  a  physician,  has  no  remedy  at  law  to  recover  a  remu- 
neration for  his  services.  The  reason  is,  that  he  is  presumed 
to  act  with  a  view  only  to  an  honorary  reward.'  Chit,  on 
Cont.  573.  In  this  country,  however,  it  is  different ;  for 
here  he  can  recover  for  his  services  in  the  same  manner  as 
an  attorney,  or  other  person  performing  services  for  another. 


IN  MEDICAL  CASES.  383 

An  employment  of  him  by  a  party,  without  express  agree- 
ment as  to  compensation,  raised  an  implied  agreement  on 
the  part  of  the  employer  to  pay  what  his  services  are  reason- 
ably worth.  In  the  case  at  bar,  although  it  is  not  alleged 
that  the  defendant  undertook  to  perform  the  services  'for 
and  in  consideration  of  a  certain  reasonable  reward,  to  be 
paid  him  therefor  by  the  plaintiff,'  yet  this  is  implied  from 
the  employment. 

Again,  it  is  alleged  that  the  defendant  was  a  practising 
physician  and  surgeon,  and  that  as  such  he  undertook  the 
employment.  The  duty  arising  from  such  character  and 
undertaking,  to  exercise  a  reasonable  degree  of  care  and 
skill,  is  as  apparent  as  if  it  were  stated  in  terms. 

It  may  well  be  doubted  whether,  under  our  system  of 
pleading,  the  supposed  defects  would  be  fatal  on  demurrer ; 
but  this  point  we  do  not  decide,  as  the  question  does  not 
arise  in  that  manner.  The  complaint,  we  have  no  doubt,  is 
good,  on  motion  in  arrest  of  judgment.  The  supposed  de- 
fects are,  undoubtedly,  cured  by  the  verdict.  Chit.  PI.  673. 
'  The  expression^cured  by  verdict,'  says  Mr.  Chitty,  '  signifies 
that  the  court  will,  after  a  verdict,  presume,  or  intend,  that  the 
particular  thing  which  appears  to  be  imperfectly  or  defectively 
stated,  or  omitted,  in  the  pleading,  was  duly  proved  at  the 
trial.  And  such  intendment  must  arise,  not  merely  from  the 
verdict,  but  from  the  united  effect  of  the  verdict  and  the  issue 
upon  which  the  verdict  was  given.  On  the  one  hand,  the  par- 
ticular thing  which  is  presumed  to  have  been  proved  must 
always  be  such  as  can  be  implied  from  the  allegations  on  the 
record,  by  fair  and  reasonable  intendment.  And,  on  the 
other  hand,  a  verdict  for  the  party  in  whose  favor  such  in- 
tendment is  made  is  indispensably  necessary,  for  it  is  in  con- 
sequence of  such  verdict,  and  in  order  to  support  it,  that  the 
court  is  induced  to  put  a  liberal  construction  upon  the  allega- 
tions in  the  record.'  lb.  Can  it  not  be  implied  from  the 
allegations  in  the  complaint,  '  by  fair  and  reasonable  intend- 
ment,' that  the  plaintiff  in  employing  the  defendant  became 
bound  by  an  implied  promise  to  pay  him  what  his  services 


384  CIVIL  MALPRACTICE. 

were  reasonably  worth  ?  If  so,  this  implied  promise  fur- 
nishes a  sufficient  consideration  for  the  defendant's  undertak- 
ing. A  case  put  by  Mr.  Chitty  to  illustrate  the  doctrine  is 
much  in  point.  At  page  667  he  says :  '  In  another  case  of 
an  action  of  assumpsit,  the  declaration  stated  that  the  plain- 
tiff had  retained  the  defendant  (who  was  not  an  attorney) 
to  lay  out  ^700  in  the  purchase  of  an  annuity,  and  that  the 
defendant  promised  to  lay  it  out  securely  ;  that  the  plaintiff 
delivered  the  money  to  the  defendant  accordingly,  but  the 
defendant  laid  it  out  on  a  bad  and  insufficient  security. 
After  verdict,  it  was  objected,  on  a  writ  of  error,  that  no 
consideration  appeared  in  the  declaration  ;  and  that  it  was 
not  averred  that  the  promise  was  in  consideration  of  the  re- 
tainer, nor  that  the  retainer  was  for  a  reward  ;  but  the  court 
held  that  it  was  absolutely  necessary,  under  the  declaration, 
that  the  plaintiff  should  have  proved  at  the  trial  that  he  had 
actually  delivered  the  money  to  the  defendant,  and  that  the 
latter  had  engaged  to  lay  it  out ;  that  the  delivery  of  the 
money  for  this  purpose  was  a  sufficient  consideration  to  sup- 
port the  promise,  and  although  it  was  not  expressly  alleged 
in  the  declaration  that  the  delivery  of  the  money  was  in  fact 
the  consideration  for  the  promise,  the  court  would  intend, 
after  verdict,  that  such  was  the  consideration.' 

So  here  it  was  necessary  that  the  plaintiff  should  have 
proved  upon  the  trial  that  he  employed  the  defendant  to 
perform  the  services  which  the  defendant  undertook,  and  we 
will  intend  that  the  plaintiff's  implied  promise  to  pay  him 
was  the  consideration  of  the  defendant's  undertaking. 

Per  Curiam.  The  judgment  is  affirmed,  with  ten  per 
cent,  damages  and  costs." 

Commonwealth  v.  Samuel  Thompson.^ 

"  At  the  beginning  of  the  term  the  prisoner  Thompson 
was  indicted  for  the  wilful  murder  of  Ezra  Lovett,  Jun.,  by 
giving  him  a  poison,  called  lobelia,  on  the  9th  day  of  Janu- 

1  6  Mass.  134. 


IN  MEDICAL  CASES.  385 

ary  last,  of  which  he  died  on  the  next  day.  On  the  20th  day 
of  December,  at  an  adjournment  of  this  term,  the  prisoner 
was  tried  for  this  offence,  before  the  Chief  Justice,  and  the 
Judges  Sewall  and  Parker.  On  the  trial,  it  appeared  in  evi- 
dence that  the  prisoner,  some  time  in  the  preceding  Decem- 
ber, came  into  Beverly,  where  the  deceased  then  lived,  an- 
nounced himself  as  a  physician,  and  professed  an  ability  to 
cure  all  fevers,  whether  blacky  Q'^obVi  gveen^  or  yellow^  declar- 
ing that  the  country  was  much  imposed  upon  by  physicians, 
who  were  all  wrong,  if  he  was  right.  He  possessed  several 
drugs,  which  he  used  as  medicines,  and  to  which  he  gave 
singular  names.  One  he  called  coffee ;  another,  well-my' 
gristle  ;  and  a  third,  ramcats.  He  had  several  patients  in 
Beverly  and  in  Salem,  previous  to  Monday,  the  2d  of  Janu- 
ary, when  the  deceased,  having  been  for  several  days  con- 
fined to  his  house  by  a  cold,  requested  that  the  prisoner  might 
be  sent  for  as  a  physician. 

He  accordingly  came,  and  ordered  a  large  fire  to  be  kindled 
to  heat  the  room.  He  then  placed  the  feet  of  the  deceased, 
with  his  shoes  off~,  on  a  stove  of  hot  coals,  and  wrapped  him 
in  a  thick  blanket,  covering  his  head.  In  this  situation  he 
gave  him  a  powder  in  water,  which  immediately  puked  him. 
Three  minutes  after,  he  repeated  the  dose,  which  in  about 
two  minutes  operated  violently.  He  again  repeated  the  dose, 
which  in  a  short  time  operated  with  more  violence.  These 
doses  were  all  given  within  the  space  of  half  an  hour,  the 
patient  in  the  mean  time  drinking  copiously  of  a  warm  decoc- 
tion, called  by  the  prisoner  his  coffee.  The  deceased,  after 
puking,  in  which  he  brought  up  phlegm,  but  no  food,  was 
ordered  to  a  warm  bed  where  he  lay  in  a  profuse  sweat  all 
night.  Tuesday  morning  the  deceased  left  his  bed,  and  ap- 
peared to  be  comfortable,  complaining  only  of  debility ;  and 
in  the  afternoon  he  was  visited  by  the  prisoner,  who  admin- 
istered two  more  of  his  emetic  powders  in  succession,  which 
puked  the  deceased,  who,  during  the  operation,  drank  of 
the  prisoner's  coffee^  and  complained  of  much  distress.  On 
Wednesday  morning,  the  prisoner  came,  and  after  causing 

25 


886  CIVIL  MALPRACTICE. 

the  face  and  hands  of  the  deceased  to  be  Tvashed  with  rum, 
ordered  him  to  walk  in  the  air,  which  he  did  for  about  fifteen 
minutes.  In  the  afternoon,  the  prisoner  gave  him  two  more 
of  his  emetic  powders,  with  draughts  of  his  coffee.  On 
Thursday,  the  deceased  appeared  to  be  comfortable,  but  com- 
plained of  great  debility.  In  the  afternoon,  the  prisoner 
caused  him  to  be  again  sweated,  by  placing  him,  with  another 
patient  over  an  iron  pan,  with  vinegar  heated  by  hot  stones 
put  into  the  vinegar,  covering  them,  at  the  same  time  with 
blankets,  who  appeared  to  be  comfortable,  although  com- 
plaining of  increased  debility.  On  Sunday  morning,  the  de- 
bility increasing,  the  prisoner  was  sent  for,  and  came  in 
the  afternoon  when  he  administered  another  of  his  emetic 
powders  and  in  about  twenty  minutes  repeated  the  dose. 
This  last  dose  did  not  operate.  The  prisoner  then  admin- 
istered pearlash  mixed  with  water,  and  afterwards  repeated 
his  emetic  potions.  The  deceased  appeared  to  be  in  great 
distress,  and  said  he  was  dying.  The  prisoner  then  asked 
him  how  far  the  medicine  had  got  down.  The  deceased,  lay- 
ing his  hand  on  his  breast,  answered  here ;  on  which  the 
prisoner  observed  that  the  medicine  would  soon  get  down, 
and  unscrew  his  navel;  meaning,  as  was  supposed  by  the 
hearers,  that  it  would  operate  as  a  cathartic.  Between  nine 
and  ten  o'clock  in  the  evening,  the  deceased  lost  his  reason, 
and  was  seized  with  convulsion  fits  ;  two  men  being  required 
to  hold  him  in  bed.  After  he  was  thus  seized  with  convul- 
sions the  prisoner  got  down  his  throat  one  or  two  doses  more 
of  his  emetic  powders  ;  and  remarked  to  the  father  of  the 
deceased,  that  his  son  had  got  the  hyps  like  the  devil,  but 
that  his  medicines  would  fetch  him  down ;  meaning,  as  the 
witness  understood,  would  compose  him.  The  next  morning 
the  regular  physicians  of  the  town  were  sent  for,  but  the 
patient  was  so  completely  exhausted  that  no  relief  could  be 
given.  The  convulsions  and  the  loss  of  reason  continued, 
with  some  intervals,  until  Tuesday  evening,  when  the  de- 
ceased expired. 

From  the  evidence  it  appeared  that  the  coffee  administered 


IN   MEDICAL   CASES.  387 

was  a  decoction  of  marsh-rosemar}^,  mixed  with  the  bark  of 
bayberry-bush,  which  was  not  supposed  to  have  injured  the 
deceased.  But  the  powder,  which  the  prisoner  said  he  chiefly 
relied  upon  m  his  practice,  and  which  was  the  emetic  so 
often  administered  by  him  to  the  deceased,  was  the  pulver- 
ized plant,  trivially  called  Indian  tobacco.  A  Dr.  French,  of 
Salisbur}^,  testified  that  the  plant,  with  this  name,  was  well 
known  in  his  part  of  the  country,  where  it  was  indigenous, 
for  its  emetic  qualities  ;  and  that  it  was  gathered  and  pre- 
served by  some  families,  to  be  used  as  an  emetic,  for  which 
the  roots,  as  well  as  the  stalks  and  leaves,  were  administered ; 
and  that  four  grains  of  the  powder  was  a  powerful  puke. 
But  a  more  minute  description  of  this  plant  was  given  by 
the  Rev.  Dr.  Cutler.  He  testified  that  it  was  the  lobelia  in- 
flata  of  Linnseus ;  that  many  years  ago,  on  a  botanical 
ramble,  he  discovered  it  growing  in  a  field  not  far  from  his 
house  in  Hamilton ;  that  not  having  Linnaeus  then  in  his  pos- 
session, he  supposed  it  to  be  a  nondescript  species  of  the 
lobelia  ;  that  by  chewing  a  leaf  of  it,  he  was  puked  two  or 
three  times;  that  afterwards  he  repeated  the  experiment  with 
the  same  effect ;  that  he  inquired  of  his  neighbor,  on  whose 
ground  the  plant  was  found,  for  its  trivial  name.  He  did 
not  know  of  any,  but  was  apprised  of  its  emetic  quality,  and 
informed  the  doctor  that  the  chewing  more  would  prove 
cathartic.  In  a  paper  soon  after  communicated  by  the  doctor 
to  the  American  Academy,  he  mentioned  the  plant,  with  the 
name  of  the  lobelia  medica.  He  did  not  know  of  its  being 
applied  to  any  medical  use  until  the  last  of  September,  when, 
being  severely  afflicted  with  the  asthma,  Dr.  Drurj^,  of  Mar- 
blehead,  informed  him  that  a  tincture  of  it  had  been  found 
beneficial  in  asthmatic  complaints.  Dr.  C.  then  made  for 
himself  a  tincture  by  filling  a  common  porter  bottle  with  the 
plant,  pouring  upon  it  as  much  spirit  as  the  bottle  would 
hold,  and  keeping  the  bottle  in  a  sand-heat  for  three  or  fouj 
days.  Of  this  tincture  he  took  a  table-spoonful  which  pro- 
duced no  nausea,  and  had  a  slight  pungent  taste.  In  ten 
minutes  after  he  repeated  the  potion,  which  produced  some 


388  CIVIL  MALPRACTICE. 

nausea,  and  appeared  to  stimulate  the  wliole  internal  surface 
of  the  stomach.  In  ten  minutes,  he  again  repeated  the 
potion,  which  puked  him  two  or  three  times,  and  excited  in 
his  extremities  a  strong  sensation,  like  irritation,  but  he  was 
relieved  from  a  paroxysm  of  the  asthma,  which  had  not  since 
returned.  He  had  since  mentioned  this  tincture  to  some 
physicians,  and  has  understood  from  them,  that  some  pa- 
tients have  been  violently  puked  by  a  teaspoonful  of  it,  but 
whether  this  difference  of  effect  arose  from  the  state  of  the 
patients,  or  from  the  manner  of  preparing  the  tincture,  he 
did  not  know. 

The  Solicitor  Greneral  also  stated,  that  before  the  deceased 
had  applied  to  the  prisoner,  the  latter  had  administered  the 
like  medicines  with  those  given  to  the  deceased  to  several  of 
his  patients,  who  had  died  under  his  hands ;  and  to  prove 
this  statement,  he  called  several  witnesses,  of  whom  but  one 
appeared.  He  on  the  contrary  testified  that  he  had  been  the 
prisoner's  patient  for  an  oppression  at  his  stomach ;  that  he 
took  his  emetic  powders  several  times  in  three  or  four  days, 
and  was  relieved  from  his  complaint,  which  had  not  since  re- 
turned. And  there  was  no  evidence  in  the  cause  that  the 
prisoner,  in  the  course  of  his  very  novel  practice,  hade  xperi- 
enced  any  fatal  accident  among  his  patients. 

The  defence  stated  by  the  prisoner's  counsel  was  that  he 
had,  for  several  years  and  in  different  places,  pursued  his 
practice  with  much  success  ;  and  that  the  death  of  the  de- 
ceased was  unexpected,  and  could  not  be  imputed  to  him  as 
a  crime.  But  as  the  court  were  satisfied  that  the  evidence 
produced  on  the  part  of  the  Commonwealth  did  not  support 
the  indictment,  the  prisoner  was  not  put  on  his  defence. 

The  Chief  Justice  charged  the  jury ;  and  the  substance 
of  his  direction,  and  o£  several  observations,  which  fell  from 
the  court  during  the  trial,  are  for  greater  convenience  here 
thrown  together. 

As  the  testimony  of  the  witnesses  was  not  contradicted, 
nor  their  credit  impeached,  that  testimony  might  be  consid- 
ered as  containing  the  necessary  facts  on  which  the  issue 
must  be  found. 


IN  MEDICAL  CASES.  389 

That  the  deceased  lost  his  life  by  the  unskilful  treatment 
of  the  prisoner,  did  not  seem  to  admit  of  any  reasonable 
doubt ;  but  of  this  point  the  jury  were  to  judge.  Before  the 
Monday  evening  preceding  the  death  of  Lovett,  he  had  by 
profuse  sweats  and  by  often  repeated  doses  of  the  emetic 
powder,  been  reduced  very  low.  In  this  state,  on  that  even- 
ing, other  doses  of  this  Indian  tobacco  were  administered. 
When  the  second  potion  did  not  operate,  probably  because 
the  tone  of  his  stomach  was  destroyed,  the  repetition  of 
them,  that  they  might  operate  as  a  cathartic,  was  followed 
by  convulsion  fits,  loss  of  reason,  and  death.  But  whether 
this  treatment,  by  which  the  deceased  lost  his  life,  is  or  is 
not  a  felonious  homicide,  was  the  great  question  before  the 
jury. 

To  constitute  the  crime  of  murder,  with  which  the  pris- 
oner is  charged,  the  killing  must  have  been  with  mahce, 
either  express  or  implied.  There  was  no  evidence  to  induce 
a  belief  that  the  prisoner,  by  this  treatment,  intended  to  kill 
or  to  injure  the  deceased  :  and  the  ground  of  express  malice 
must  fail.  It  has  been  said  that  implied  malice  may  be  in- 
ferred from  the  rash  and  presumptuous  conduct  of  the  pris- 
oner, in  administering  such  violent  medicines.  Before  im- 
plied malice  can  be  inferred,  the  jury  must  be  satisfied  that 
the  prisoner,  by  this  treatment  of  his  patient,  was  wilfully 
regardless  of  his  social  duty,  being  determined  on  mischief. 
But  there  is  no  part  of  the  evidence  which  proves  that  the 
prisoner  intended  by  his  practice  any  harm  to  the  deceased. 
On  the  contrary,  it  appears  that  his  intention  was  to  cure 
him.  The  jury  would  consider  whether  the  charge  of  mur- 
der was  on  these  principles  satisfactorily  supported. 

But  though  innocent  of  the  crime  of  murder,  the  prisoner 
may  on  this  indictment  be  convicted  of  manslaughter,  if  the 
evidence  be  sufficient.  And  the  solicitor  general  strongly 
urged  that  the  prisoner  was  guilty  of  manslaughter,  because 
he  rashly  and  presumptuously  administered  to  the  deceased 
a  deleterious  medicine,  which  in  his  hands,  by  reason  of  his 
gross  ignorance,  became  a  deadly  poison.     The  prisoner's  ig- 


390  CIVIL  MALPRACTICE. 

norance  is  in  this  case  very  apparent.  On  any  other  ground 
consistent  with  his  innocence,  it  is  not  easy  to  conceive  that 
on  the  Monday  evening  before  the  death,  when  the  second 
dose  of  his  very  powerful  emetic  had  failed  to  operate, 
through  the  extreme  weakness  of  the  deceased,  he  could  ex- 
pect a  repetition  of  these  fatal  poisons  would  prove  a  ca- 
thartic, and  relieve  the  patient ;  or  that  he  could,  mistake 
convulsion  fits,  symptomatic  of  approaching  death,  for  a  hyp- 
ochondriac affection. 

But  on  considering  this  point,  the  court  were  all  of  opin- 
ion, notwithstanding  this  ignorance,  that  if  the  prisoner  acted 
with  an  honest  intention  and  expectation  of  curing  the  de- 
ceased by  this  treatment,  although  death  unexpected  by  him 
was  the  consequence,  he  was  not  guilty  of  manslaughter. 

To  constitute  manslaughter,  the  killing  must  have  been 
a  consequence  of  some  unlawful  act.  Now,  there  is  no  law 
which  prohibits  any  man  from  prescribing  for  a  sick  person, 
with  his  consent,  if  he  honestly  intends  to  cure  him  by  his 
prescription.  And  it  is  not  felony  if  through  his  ignorance 
of  the  quality  of  the  medicine  prescribed,  or  of  the  nature  of 
the  disease,  or  of  both,  the  patient,  contrary  to  his  expecta- 
tion, should  die.  The  death  of  a  man  killed  voluntarily  fol- 
lowing a  medical  prescription  cannot  be  adjudged  felony  in 
the  party  prescribing,  unless  he,  however  ignorant  of  medical 
science  in  general,  had  so  much  knowledge,  or  probable  infor- 
mation of  the  fatal  tendency  of  the  prescription,  that  it  may 
be  reasonably  presumed  by  the  jury  to  be  the  effect  of  obsti- 
nate, wilful  rashness  at  the  least,  and  not  of  an  honest  inten- 
tion and  expectation  to  cure. 

In  the  present  case  there  is  no  evidence  that  the  prisoner, 
either  from  his  own  experience  or  from  the  information  of 
others,  had  any  knowledge  of  the  fatal  effects  of  the  Indian 
tobacco,  when  injudiciously  administered ;  but  the  only  tes- 
timony produced  to  this  point  proved  that  the  patient  found 
a  cure  from  the  medicine.  The  law,  thus  stated,  was  con- 
formable, not  only  to  the  general  principles  which  governed 
in  charge  of  felonious  homicide,  but  also  to  the  opinion  of  the 


IN  MEDICAL  CASES.  391 

learned  and  excellent  Lord  Chief  Justice  Hale.  He  ex- 
pressly states  that  if  a  physician,  whether  licensed  or  not,  gives 
a  person  a  potion  without  any  intent  of  doing  him  any  bodily 
hurt,  but  with  intent  to  cure,  or  prevent  a  disease,  and,  con- 
trary to  the  expectation  of  the  physician,  it  kills  him,  he  is 
not  guilty  of  murder  or  manslaughter.  If,  in  this  case,  it 
had  appeared  in  evidence,  as  was  stated  by  the  solicitor  gen- 
eral, that  the  prisoner  had  previously,  by  administering  this 
Indian  tobacco,  experienced  its  injurious  effects  in  the  death 
or  bodily  hurt  of  his  patients,  and  that  he  afterwards  admin- 
istered it  in  the  same  form  to  the  deceased,  and  he  was  killed 
by  it,  the  court  would  have  left  it  to  the  serious  consideration 
of  the  jury,  whether  they  would  presume  that  the  prisoner 
administered  it  from  an  honest  intention  to  cure,  or  from 
obstinate  rashness  and  foolhardy  presumption,  although  he 
might  not  have  intended  any  bodily  harm  to  his  patient.  If 
the  jury  should  have  been  of  this  latter  opinion  it  would 
have  been  reasonable  to  convict  the  prisoner  of  manslaughter. 
For  it  would  not  have  been  lawful  for  him  again  to  adminis- 
ter a  medicine  of  which  he  had  such  fatal  experience. 

It  is  to  be  exceedingly  lamented  that  people  are  so  easily 
persuaded  to  put  confidence  in  these  itinerant  quacks,  and  to 
trust  their  lives  to  strangers  without  knowledge  or  experience. 
If  this  astonishing  infatuation  should  continue,  and  men  are 
found  to  yield  to  the  impudent  pretensions  of  ignorant  empiri- 
cism, there  seems  to  be  no  adequate  remedy  by  a  criminal 
prosecution,  without  the  interference  of  the  legislature,  if  the 
quack,  however  weak  and  presumptuous,  should  prescribe  with 
honest  intention  and  expectations  of  relieving  his  patient. 

TJie  prisoner  was  acquittedy 

The  notorious  case  of  medical  empiricism,  cited  supra^  is 
the  only  one  I  have  been  able  to  find,  in  which  the  allegation 
of  murder  or  manslaughter  has  been  founded  on  the  adminis- 
tration of  nostrums  by  charlatans.  Followers  of  the  Thomp- 
sonian,  or  as  they  are  pleased  to  style  it  at  the  present  day, 
the  "  Physio-Medical  System  "  of  practice,  boast  that  Thomp- 


392  CIVIL  MALPRACTICE. 

son  was  "  discharged  without  being  put  on  his  defence"  as  if 
that  was  sufficient  to  raise  their  "system"  to  a  decent 
position  in  medicine.  The  court  recognized  that  the  case 
was  one  of  culpable  ignorance,  sounding  in  fatal  damage  to 
others ;  but  it  interposed,  as  it  was  bound  to,  the  humane 
rule,  that  what  was  done  with  a  good  intention  should  not  be 
alleged  as  a  crime,  and  so  the  defendant  was  shielded  from  a 
just  punishment. 


MEASURE  OE  DAjMAGES. 

Fowler   v.   Sergeant.^ 


"LowRiE  J.  There  being  no  definite  measure  of  damages 
in  such  cases  as  these,  it  is  usual  to  inform  the  jury  of  the 
circumstances  of  the  respective  parties,  and  we  see  no  error  in 
the  mode  of  doing  it  in  this  case.  It  was  right,  also,  to  allow 
the  plaintiff  to  exhibit  the  injured  limb  to  the  jury,  because 
a  sight  is  always  better  than  a  description,  and  the  terms  im- 
posed upon  the  plaintiff  by  the  court  were  for  the  benefit  of 
the  defendant,  of  which  he  could  not  complain,  imless  he  had 
afterwards  asked  for  more  and  been  refused. 

Why  the  defendant  should  not  compensate  the  plaintiff 
for  the  suffering  of  a  fortnight's  unskilful  treatment,  it  is 
impossible  for  us  to  find  any  reason,  and  we  must  say  that 
the  court  was  right ;  and  if  the  court  could  not  understand 
why  such  treatment  should  continue  so  long,  we  cannot  say 
that  they  were  in  error  in  saying  so,  especially  when  they 
left  the  question  to  the  jury.  The  neglect  to  produce  evi- 
dence that  is  known  to  be  in  one's  power  is  necessarily  sus- 
picious, and  thus  evidence  against  him ;  and  it  was  on  this 
principle  that  the  court  allowed  the  counsel  to  comment  on 
the  defendant's  failure  to  call  his  son,  who  aided  him  in  his 
attendance  on  the  case,  and  we  do  not  see  that  this  was  er- 
roneous. 

The  above  remarks  relate  to  the  defendant's  exceptions. 
1  1  Grant  (Pa.),  355. 


MEASURE  OF  DAIVIAGES.  393 

But  the  plaintiff  has  some  likewise,  and  we  proceed  to  con- 
sider them. 

This  we  can  do  very  briefly,  for  there  is  really  but  one 
thought  in  them  all,  as  there  was  but  one  thought  variously 
expressed  in  the  different  parts  of  the  charge  complained  of. 
That  thought  may  be  fully  expressed  thus  :  — 

A  physician  or  surgeon  is  not  chargeable  for  ignorance  of 
a  case  if  he  prescribes  for  it  rightfy. 

Understanding  it  thus,  it  is  impossible  for  us  to  say  that 
the  instructions  were  erroneous. 

Judgment  affirmed  and  record  remitted.''' 

Rich  et  Uxok  v.   Pieepont.^ 

"  Erle  C.  J.,  in  summing  up  the  case  to  the  jury,  said 
the  case  had  taken  up  a  long  time,  but  not  longer  than  its 
importance  either  to  the  character  of  the  defendant  or  pro- 
fession to  which  he  belonged  most  fully  justified.  It  was  an 
action  charging  him  with  a  breach  of  his  legal  duty,  by 
reason  of  inattention  and  negligence,  and  want  of  proper  care 
and  skill ;  and  if  they  were  of  opinion  that  there  had  been  a 
culpable  want  of  attention  and  care,  he  would  be  liable.  A 
medical  man  was  certainly  not  answerable  merely  because 
some  other  practitioner  might  have  shown  greater  skill  and 
knowledge ;  but  he  was  bound  to  have  that  degree  of  skill 
which  could  not  be  defined,  but  which,  in  the  opinion  of  the 
jury,  was  a  competent  degree  of  skill  and  knowledge  :  what 
that  was  the  jury  were  to  judge. 

It  was  not  enough  to  make  the  defendant  liable  that  some 
medical  men,  of  far  greater  experience  or  ability,  might  have 
used  a  greater  degree  of  skill,  nor  that  even  he  might  pos- 
sibly have  used  some  greater  degree  of  care.  The  question 
was,  whether  there  had  been  a  want  of  competent  care  and 
skill  to  such  an  extent  as  to  lead  to  the  bad  result.  As  to  the 
mistake  about  the  tartaric  acid,  it  turned  out  to  be  of  no  con- 
sequence, and  the  mere  error  of  the  nurse  in  giving  it  to  the 
1  3  Foster  &  Finlason's  R.  35. 


394  CIVIL  MALPRACTICE. 

defendant  instead  of  the  gin.  The  medical  testimony  ap- 
peared to  be  greatly  in  favor  of  the  defendant ;  and,  con- 
sidering how  much  the  treatment  of  the  case  depended  upon 
its  varying  phases,  which  changed  as  quickly  as  the  shifting 
hues  of  the  heavens,  it  was  hard  for  one  medical  man  to 
come  forward  and  condemn  the  treatment  of  a  brother  in 
the  profession,  and  say  that  he  would  have  done  this  or  that, 
when  probably,  had  he  been  in  position  to  judge  of  the  case 
from  the  first,  he  would  have  done  no  better.  Upon  the 
whole  of  the  case,  if  the  jury  thought  there  had  been  cul- 
pable neglect  or  want  of  due  care  or  competent  skill,  let 
them  find  for  the  plaintiff  ;  if  otherwise,  for  the  defendant. 
Jury  found  a  verdict  for  the  defendant.''^ 


Ruddock  v.   Lowe.^ 

"  Ceompton,  J.,  to  the  jury.  The  substantial  question  for 
you  is,  whether  the  defendant  undertook  to  and  did  treat  the 
plaintiff  for  his  disorder  as  is  alleged ;  or  it  is  admitted  that 
the  supposed  treatment  was  grossly  improper.  The  form  of 
the  counts  varies,  but  upon  all  of  them  the  substantial  ques- 
tion is  the  same,  —  did  the  defendant  treat  the  plaintiff  witb 
mercury  and  so  cause  him  injury  as  stated. 

Verdict  for  plaintiff,  £200." 

Jones  v.  Fay.^ 

"  PiGOTT  B.  The  questions  for  you  are,  did  the  defend- 
ant undertake  to  treat  the  plaintiff  for  his  disorder  ?  Did 
he  do  so  with  either  negligence  or  ignorance  ?  Did  this  neg- 
ligent or  ignorant  treatment  cause  the  injury  to  the  plaintiff? 
These  questions  practically  resolve  themselves  into  this,  — 
whether  the  pills  the  defendant  gave  the  plaintiff  were  blue 
pill  ?     For  if  so,  it  is  admitted  that  such  treatment  would  be 

1  4  Poster  &  Fiulason,  519. 

2  Ibid.  525. 


MEASURE   OF  DAMAGES.  395 

improper,  and  whether  given  advisedly  or  by  accident  the 
defendant  would  be  equally  liable.  As  regards  damages, 
endeavor  to  distinguish  between  the  injury  caused  by  the 
defendant's  negligence  or  ignorance,  and  that  caused  by  the 
plaintiff's  imprudence. 

Verdict  for  the  plaintiff,  damages  .£100. " 


396  CIVIL  MALPRACTICE. 


CHAPTER  XIV. 

SKILL  IN  DIAGNOSIS. 
FEACTUKES. 

The  discussion  of  the  question  of  skill  in  diagnosis  and 
treatment  will  be  restricted  to  fractures  and  dislocations, 
these  forming  by  far  the  larger  number  of  the  cases  that 
come  into  courts  for  adjudication. 

The  first  duty  the  surgeon  has  to  perform,  when  called  in 
case  of  accident,  is  to  determine  the  nature  of  the  injury.  Is 
it  a  bruise,  a  sprain,  a  dislocation,  or  a  fracture?  In  injuries 
near  joints,  the  diagnosis  will  be  often  most  difficult  to 
make.  The  rapid  effusion  and  consequent  swelling  that 
takes  place  will  tax  the  surgeon's  skill  to  the  utmost,  es- 
pecially when  the  injury  is  near  the  shoulder,  the  elbow,  or 
the  hip-joints.  The  points  claiming  the  particular  attention 
of  the  surgeon  relate  to  deformity,  shortening  or  lengthen- 
ing, preternatural  mobility  or  immobility,  and  crepitus.  The 
recognition  of  deformity  will  be  made  out  by  the  eye  taking 
the  uninjured  limb  for  comparison.  It  may  be  necessary  to 
use  the  "  touch  "  as  an  aid  to  the  sight,  but  in  this  as  in  all 
other  manipulations  the  surgeon  should  exercise  the  greatest 
gentleness.  It  is  no  mark  of  surgical  attainment  to  handle 
a  broken  limb  roughly,  neither  is  it  necessary,  as  a  rule. 
Professor  Hamilton,  when  speaking  on  this  point,  says :  — 

"  Nothing,  in  my  opinion,  betrays  a  lack  of  judgment  as 
well  as  of  common  humanity,  on  the  part  of  the  surgeon,  so 
much  as  a  rude  and  reckless  handling  of  a  limb  already 
pricked  and  goaded  into  spasms  by  the  sharp  points  of  a 


SKILL  IN  DIAGNOSIS.  397 

broken  bone.  It  is  not  enough  to  say  that  such  rough  manip- 
ulation is  generally  unnecessary ;  it  is  positively  mischievous, 
provoking  the  muscles  to  more  violent  contractions,  increas- 
ing the  displacement  which  already  exists,  and  sometimes 
producing  a  complete  separation  of  the  impacted,  denticu- 
lated, transverse,  or  partial  fractures,  which  can  never  after- 
wards be  wholly  remedied ;  augmenting  the  pain  and  inflam- 
mation, and  not  unfrequently,  I  have  no  doubt,  determining 
the  occurrence  of  suppuration,  gangrene,  and  death."  .... 
"  Finally  "  (after  giving  instructions,  as  to  the  proper 
method  of  examining  the  patient)  he  says,  "  if  any  doubt 
remains,  the  limb  must  be  firmly  but  steadily  held,  while 
the  necessary  manipulations  are  performed,  for  the  purpose 
of  ascertaining  the  existence  of  mobility  and  of  crepitus." 
Fract.  and  Dis.  37  (5th  ed.). 

Prof.  Gross  says :  "  Experience  satisfies  me  that  few  prac- 
titioners know  how  to  examine  a  broken  limb.  They  take 
hold  of  it  as  if  they  were  afraid  of  causing  suffering,  and  the 
result,  therefore,  is  often  most  disastrous.  I  am  far  from 
wishing  to  be  understood  as  being  an  advocate  of  rough 
surgery  ;  on  the  contrary,  no  one  abhors  it  more  than  I  do  ; 
and  yet  there  are  times  and  circumstances  when  the  best 
interests  of^  the  patient  demand  that  he  should  be  most 
thoroughly  examined,  no  matter  what  amount  of  pain  he 
may  be  compelled  to  undergo.  But  there  is  no  longer  any 
need  of  such  infliction  now  that  we  can  prevent  suffering  by 
anaesthesia.  The  patient  being  rendered  insensible,  perqui- 
sition is  performed  at  the  surgeon's  leisure,  slowly  and  de- 
liberately, and  with  an  eye  to  the  ultimate  result,  not  forget- 
ting self.  The  sooner  such  manipulation  is  instituted  the 
better,  for  there  will  then  be  less  likelihood  of  inflammatory 
swelling  and  other  obstacles  calculated  to  embarrass  our 
progress  or  to  obscure  the  diagnosis."  Gross's  Syst.  Surg, 
vol.  i.  p.  860  (3d  ed.). 

In  respect  to  the  use  of  anaesthetics,  Professor  Hamilton 
says  he  does  not  often  find  it  necessary  to  resort  to  them 
"  for  the  purpose  of  insuring  quietude  and  annihilating  pain 


898  CIVIL  MALPKACTICE. 

in  making  these  examinations,  since  it  is  seldom  that  the 
patient  need  to  be  much  disturbed ;  but  if  the  examination 
is  not  satisfactory,  and  the  diagnosis  is  important,  I  do  not 
hesitate  to  render  the  patient  completely  insensible,  after 
which  the  question  in  doubt  may  be  more  thoroughly  inves- 
tigated and  perhaps  definitely  settled. 

The  surgeon  ought  not  to  forget,  however,  that  while 
the  patient  is  under  the  influence  of  an  angesthetic,  violent 
manipulations  are  no  less  liable  to  rupture  blood-vessels,  and 
to  lacerate  other  tissues,  than  if  employed  when  the  patient 
is  conscious."     Fract.  and  Dis.  (5th  ed.)  37,  38. 

In  the  covmtry  there  is  a  very  great  prejudice  against  the 
use  of  anassthetics.  This  prejudice  is  encouraged  by  physi- 
cians not  familiar  with  their  use  and  advantages.  To  such 
an  extent  is  this  the  case,  that  other  physicians  are  deterred 
from  availing  themselves  of  these  agencies  of  so  much  value 
to  their  patients,  if  not  to  themselves,  for  fear  that  if  a  bad 
result  should  follow,  the  occurrence  would  be  used  to  their 
detriment. 

The  earlier  the  patient  is  examined  after  the  injury  the 
better.  If  from  swelling,  &c.,  the  surgeon  is  unable  to  reach 
a  satisfactory  diagnosis,  repeated  examinations  should  be 
made,  during  and  after  the  subsidence  of  these. 

Attention  should  be  first  directed  to  the  deviation  of  the 
limb  from  its  normal  condition.  Unnatural  position,  bends 
in  the  axis  of  the  bone,  loss  of  function.  In  fractures  and 
dislocations  of  the  lower  extremity,  careful  measurement 
with  a  graduated  tape  or  with  a  string  that  will  not  stretch, 
should  be  practised,  both  in  diagnosis  and  treatment.  In 
diagnosis,  to  determine  the  length  of  the  injured  limb  as 
compared  with  the  uninjured  one.  In  treatment,  for  the  pur- 
pose of  determining  whether  the  dressing  is  keeping  the  limb 
of  proper  length.  In  fractures  of  the  upper  extremity, 
measurement  is  of  little  or  no  value,  except  it  be  in  fractures 
of  the  humerus.  In  dislocations  of  the  shoulder  it  may  some- 
times be  resorted  to  with  advantage.  Measurement  in  in- 
juries of  the  lower  extremity  is  the  rule,  in  the  upper  it  is 
the  exception. 


SKILL  IN  DIAGNOSIS.  399 

In  fractures  of  tlie  femur,  measurement  should  always  be 
practised,  not  once  only,  but  every  day,  or  as  frequently  as 
the  surgeon  may  deem  it  necessary,  in  order  to  determine 
that  his  dressing  is  fulfilling  its  purpose  in  keeping  the 
broken  bone  to  as  near  its  proper  length  as  the  nature  of  the 
case  will  permit. 

Preternatural  mobility  is  a  sign,  present  in  all  fractures, 
except  impacted^  and  should  be  carefully  looked  for  by  the 
surgeon.  Not  so  important  as  crepitus,  yet  being  always 
present  it  is  scarcely  less  important. 

Crepitus,  that  grating  sound  heard  not  only  by  the  ear  but 
2X^0  felt  by  the  hand  of  the  surgeon,  is  the  most  valuable  of 
the  common  signs,  but  unfortunately  it  is  not  always  present. 
The  ends  of  the  broken  bones  may  be  impacted,  as  often 
happens,  near  the  joints,  which,  with  the  great  amount  of 
swelling,  so  obscures  the  nature  of  the  accident  that  eminent 
surgeons  have  been  frequently  led  into  error. 

Prof.  Hamilton  (Fract.  and  Dis.  (3d  ed.)  34),  speaking  of 
general  diagnosis  says  :  "  Valuable  and  important  as  is  crepi- 
tus in  its  relations  to  differential  diagnosis,  unfortunately  it 
is  not  always  present,  and  for  reasons  that  must  be  plainly 
stated.  First :  we  cannot,  in  a  pretty  large  proportion  of 
cases,  bring  the  broken  ends  again  into  apposition.  What- 
ever mere  theorists  may  say  to  the  contrary,  and  notwith- 
standing surgeons  up  to  this  time  have  rarely  ventured  to 
allude  to  this  subject,  the  fact  is  so  that  we  do  not  'set' 
broken  bones.  We  do  not,  even  at  first,  bring  them  into 
complete  apposition,  unless  it  is  the  exception.  I  speak  of 
bones  once  completely  displaced  by  overlapping,  and  these 
constitute  the  majority  of  examples  which  come  under  the 
surgeon's  observation.  Second  :  in  transverse  fractures  of  the 
patella,  and  in  fractures  of  the  olecranon  and  coranoid  proc- 
esses of  the  ulna,  of  the  coracoid  and  acromion  process  of 
the  scapula,  and  in  all  similar  detachments  of  processes  and 
apophyses,  the  action  of  the  muscles,  by  displacing  the  frag- 
ments, prevents  crepitus  from  being  readily  produced.  Third : 
in  a  few  cases,  such  as  certain  fractures  of  the  neck  of  the 


400  CIVIL  MALPRACTICE. 

femur,  of  the  neck  and  head  of  the  humerus,  &c.,  the  broken 
ends  may  be  impacted,  or  so  driven  into  each  other,  as  to  for- 
bid the  production  of  motion  and  crepitus ;  or  they  may  be 
simply  denticulated,  and  the  consequences,  so  far  as  crepitus 
is  concerned,  will  be  the  same." 

We  may  remark  here,  that  the  diagnosis  of  dislocations  is 
often  made  with  the  greatest  difficulty,  and  may  not  be  made 
correctly  at  all,  from  the  great  amount  of  swelling  that  almost 
instantly  supervenes.  Sir  Astley  Cooper  remarks  (Dis.  and 
Frac.  (Am.  ed.)  319),  when  speaking  of  the  signs  of  disloca- 
tions of  the  humerus,  —  and  the  remarks  are  equally  applica- 
ble to  fractures  of  the  humerus  near  either  end,  —  that  "  but 
a  few  hours  make  the  appearances  much  less  decisive,  from 
the  extravasation  of  blood,  and  from  the  excessive  swelling, 
which  sometimes  ensue ;  but  when  the  effused  blood  has 
become  absorbed,  and  the  inflammation  has  subsided,  the 
marks  of  the  injury  become  again  decisive.  At  this  latter 
period  it  is  that  surgeons  of  the  metropolis  are  usually  con- 
sulted ;  and  if  we  detect  a  dislocation  which  has  been  over- 
looked, it  is  our  duty,  in  all  candor,  to  state  to  the  patient 
that  the  difficulty  of  detecting  the  nature  of  the  accident  is 
exceedingly  diminished  by  the  cessation  of  inflammation  and 
the  absence  of  tumefaction.  It  may  also  be  observed  that 
there  is  great  difference  in  the  facility  with  which  the  acci- 
dent is  discovered  in  thin  persons  of  advanced  age,  and  in 
those  who  are  loaded  with  fat,  or  who  have  by  constant  exer- 
tion rendered  their  muscles  excessively  large."  He  remarks, 
previously,  in  his  general  observations  on  dislocations,  that 
"  it  must  be  borne  in  mind  that  where  fibrinous  effusion  has 
taken  place,  as  generally  happens  in  inflamed  joints,  we  may 
have  sounds  that  no  skill  can  determine  the  nature  of,  espe- 
cially in  such  cases  as  above  described."  See  also  Ashurst's 
Princip.  and  Prac.  of  Surg.  270-1. 

Harper,  age  twenty-one  years,  was  run  over  by  wheel  of 
wagon,  breaking  both  bones  of  right  leg  above  ankle.     Was 


SKILL  m  DIAGNOSIS.  401 

dressed  on  lateral  tin  splints,  not  tightly,  on  account  of  abra- 
sions on  skin.  Extension  was  kept  up  by  weight  and  pulley. 
Was  removed  home  on  the  twenty-first  day,  a  distance  of  ten 
miles,  the  leg  being  secured  by  a  starch  bandage.  The  fifth 
week  there  was  yet  no  provisional  callus  in  front  of  tibia. 
Limb  looked  well,  but  on  moving  it  passively  there  was  dis- 
tinct crepitus.  This  continued  the  seventh,  eighth,  and 
ninth  weeks,  and  crepitus  could  be  distinctly  located  at  sev- 
eral points  from  ankle  to  knee.  It  was  impossible  to  say 
whether  crepitus  was  true  or  false.  Friction  was  employed 
and  patient  directed  to  get  out  on  crutches.  Crepitus  finally 
disappeared  after  the  fourteenth  week. 


DISLOCATIONS. 


Dislocations,  as  a  rule,  are  characterized  by  preternatu- 
ral immobility,  and  when  reduced  do  not  need  support  to  re- 
tain the  bone  in  position ;  alteration  in  the  axis  of  the  limb 
and  absence  of  crepitus.  Extensive  laceration  of  ligaments 
and  muscles  may  permit  extreme  mobility.  Sometimes,  how- 
ever, after  reduction,  the  bone  has  a  strong  tendency  to  re- 
dislocation  and  will  not  remain  in  place  without  support. 
False  crepitus  may  also  be  present  and  surgeons  of  more 
than  "  ordinary  skill "  fail  to  determine  its  nature.  The 
pain,  swelling,  and  discoloration  present  with  fractures,  in 
dislocations,  are  generally  augmented.  Observation  of  the 
above  characteristics  will  usually  carry  the  surgeon  safely 
through,  unless  there  be  both  fracture  and  dislocation,  in. 
which  case  the  difficulty  in  diagnosis  will  be  most  annoying'. 
The  following  case  illustrates  these  difficulties  well :  — 

W.  J.  A.,  dentist,  age  twenty-five,  was  thrown  from  a  horse^ 
Nov.  21,  1872.  I  saw  him  within  three  quarters  of  an  hour. 
The  force  of  the  fall  had  been  received  on  the  left  fore-arm 
and  arm.  The  chief  injury  was  located  in  and  around  the 
elbow-joint.  Found  him  with  fore-arm  flexed  at  a  right 
angle ;  elbow  very  much  swollen  ;  no  particular  difficulty  in 

26 


402  CIVIL   MALPRACTICE. 

passively  extending  and  flexing  fore-arm  ;  pronation  and  supi- 
nation not  more  impaired  than  they  would  be  from  pain  and 
the  swelling  of  the  muscular  tissues.  The  patient  was  quite 
faint  from  shock ;  rotation  of  head  of  radius  could  not  be  felt 
on  account  of  tumefaction  ;  in  extended  position,  rotation 
developed  crepitus.  Passing  fingers  up  the  ulna  discovered  a 
depression  about  an  inch  and  a  quarter  to  an  inch  and  three 
quarters  below  point  of  olecranon;  flexion  of  the  arm  in- 
creased this  depression  somewhat;  there  was  a  sharp,  pro- 
jecting edge  on  upper  fragment,  which  was  quite  prominent 
when  fore-arm  was  flexed.  Diagnosed  fracture  of  the  olecra- 
non process  at  its  base. 

Never  having  seen  a  fracture  of  this  part,  in  my  own  ex- 
perience or  the  experience  of  others,  and  carrying  in  my  mind 
that  there  was  a  difference  of  opinion  as  to  the  position  in 
which  the  arm  should  be  dressed,  I  went  to  my  oflice  to  pre- 
pare a  splint  and  consult  my  authorities  on  the  subject.  The 
weight  of  authority  being  in  favor  of  the  straight  position,  it 
was  so  dressed,  on  a  long  tin  gutter  splint  applied  to  front  of 
the  arm,  secured  by  a  roller  bandage  figure  of  eight  around 
the  joint.  This  dressing  was  continued  till  the  afternoon  of 
the  23d,  when,  at  patient's  request,  it  was  left  off  for  a  few 
hours.  The  patient  had  found  it  necessary,  on  account  of 
the  swelling  and  pain,  to  cut  the  figure  of  eight  bandage 
several  times  since  first  dressing.  The  arm  was  dressed  twice 
a  day  for  the  first  three  or  four  daj^s.  While  the  splint  was 
off,  had  him  apply  water  dressing,  of  such  temperature  as 
was  most  agreeable,  arm  being  kept  in  extended  position. 
Had  the  arm  wet  frequently  since  the  first  dressing  with 
camphor  spirits,  tiuct.  arnica  &c.  The  swelling  commenced 
subsiding  by  the  24th,  the  pain  being  much  less.  There 
was  by  this  time  a  very  great  amount  of  ecchymosis  developed 
upon  the  inner  and  upper  portion  of  the  arm  as  high  as  the 
axilla.  I  had  told  patient  that  at  the  end  of  third  week  I 
would  put  in  practice  passive  motion.  Patient  went  to 
another  county  the  third  week  (20th  day)  of  the  treatment, 
and  did  not  return  for  about  ten  days.     During  his  absence, 


SKILL  IN  DIAGNOSIS.  403 

several  surgeons  saw  the  arm  and  thought  it  was  doing  well. 
When  I  next  saw  him,  the  swelling  had  in  a  great  measure 
subsided  ;  there  was  some  ability  to  flex  and  rotate  the  arm 
by  means  of  the  other  hand.  There  was  at  this  time,  and 
there  continues  to  be,  that  grating  sound,  resembling  crepitus, 
which  I  refer  to  inflammatory  exudations.  The  fragments 
appear  to  have  become  united  with  but  little  separation. 
There  is  a  slight  excess  of  projection  in  the  vicinity  of  the 
outer  condyle,  or  perhaps  as  low  as  the  head  of  the  radius. 
This  is,  doubtless,  the  displaced  fractured  external  condyle. 
The  depression  at  seat  of  fracture  of  olecranon  is  easily  rec- 
ognized ;  both  flexion  and  rotation  under  passive  and  active 
exercise  seemed  to  be,  at  this  time,  Jan.  14,  1873,  improving. 
Subsequently,  acting  upon  the  advice  of  Drs.  Hamilton,  of 
Galesburg,  and  Reece,  of  Abingdon,  111.,  I  placed  patient 
under  the  influence  of  an  anaasthetic  and  forcibly  broke  up 
the  anchylosis.  Immediately  after  the  operation,  flexion  and 
extension  could  be  easily  made  passively,  but  the  resulting 
inflammation  was  considerable,  and  patient  refused  to  make 
such  constant  motion  as  was  required,  and  the  joint  became 
again  anchylosed,  the  arm  being  in  an  extended  position. 
The  projection  at  external  condyle,  in  a  few  moments  after 
the  arm  was  forcibly  flexed,  became  obscure,  and  it  was 
thought  by  the  gentleman  who  assisted  me,  that  perhaps 
what  we  had  taken  for  the  fractured  condyle,  was  the  dislo- 
cated head  of  the  radius,  and  that  it  was  replaced  by  the  for- 
cible flexion.  This  may  have  been  so,  as  while  the  forcible 
flexion  was  being  made,  there  was  also  considerable  extension 
made,  and  the  limb  was  in  the  right  position  to  allow  of  the 
reduction.  This  operation  was  done  about  three  months 
after  the  injury,  and  now  after  three  years  there  is  not  the 
slightest  motion  at  the  joint.  The  muscles  of  the  arm  are 
excessively  atrophied,  while  those  of  the  fore-arm  have  as  fine 
a  development  as  before  the  injury.  The  almost  straight 
position  of  the  fore-arm  with  the  arm  does  not  materially  in- 
terfere with  the  pursuit  of  his  occupation. 

The  difficulties  here  presented  were:  1.  Danger  of  separa- 


404  CIVIL  MAXPRACTICE. 

tion  of  fragment  of  olecranon.  2.  The  fracture  being  so  low 
down,  the  joint  miglit  be  implicated,  and  there  would  be 
permanent  anchylosis  from  osseous  deposit  in  the  joint. 
3.  Fracture  so  low  down  that  the  head  of  the  radius  would  be 
intruded  upon  by  callus,  and  so  rotation  be  impaired.  4.  Dis- 
location of  head  of  radius  backwards  or  outwards,  or  frac- 
ture of  the  same.  5.  Fracture  of  external  condyle.  The 
true  condition  of  the  arm  could  not  at  the  time,  on  account 
of  the  excessive  swelling  and  pain,  be  made  out.  The  diag- 
nosis is,  now,  after  all  swelling  has  passed  away,  only  a  mat- 
ter of  probability. 

A  study  of  the  cases  of  alleged  malpractice  in  cases  of  in- 
juries about  the  joints  will  show  the  great  difficulty  attend- 
ing their  diagnosis.  "Where  swelling  has  occurred,  or  in  fat 
or  very  muscular  persons,  the  difficulties  are  enhanced.  Even 
after  all  the  inflammatory  conditions  are  removed  and  the 
joint  permitting  a  very  thorough  examination,  by  reason  of 
absence  of  pain,  surgical  experts  are  frequently  unable  to  ar- 
rive at  a  unanimous  opinion  as  to  what  may  be  the  true  con- 
dition. 

In  dislocations  of  the  shoulder.  Prof.  L.  A.  Dugas,  of  the 
Medical  College  of  Georgia  (Trans.  Am.  Med.  Association, 
vol.  X.  p.  175),  has  enunciated  the  following  principle  of 
diagnosis  :  "If  the  fingers  of  the  injured  limb  can  be  placed 
by  the  patient  or  by  the  surgeon  upon  the  sound  shoulder, 
while  the  elbow  touches  the  thorax,  there  can  he  no  disloca- 
tion ;  and  if  this  cannot  be  done,  there  must  he  a  dislocation. 
In  other  words,  it  is  2yhysically  impossible  to  bring  the  elbow 
in  contact  with  the  sternum  or  front  of  the  thorax  if  there  be 
a  dislocation  ;  and  the  inability  to  do  this  is  proof  positive  of 
the  existence  of  dislocation,  inasmuch  as  no  other  injury  of 
the  shoulder- joint  can  induce  this  inability."  This  sign  is 
common  to  all  of  the  dislocations  of  the  shoulder,  and  hence 
the  test  should  never  be  omitted  in  case  of  doubt. 

It  should  be  borne  in  mind  that  after  union  of  fractures 
through  the  tuberosities  of  the  humerus,  or  in  fractures 
above  the  surgical  neck  of  the  humerus,  there  may  be  a  sim- 


SKILL  IN  DIAGNOSIS.  406 

ulation  of  an  unreduced  dislocation  of  humerus  beneath  cor- 
acoid  process.  See  paper  of  J.  Hutchinson,  surgeon  to  Lon- 
don Hospital,  Medical  News  and  Library,  May,  1875. 

In  dislocations  of  the  hip  there  is  either  lengthening  or 
shortening  of  the  limb  with  an  unnatural  position  of  foot  and 
toes,  this  being  usually  so  well  marked  the  diagnosis  is  more 
readily  made  than  it  is  in  dislocations  of  the  shoulder. 

Diagnosis  is  the  science  of  probabilities  founded  upon  a 
knowledge  of  anatomy  and  pathological  states.  The  greater 
this  knowledge  and  common  sense  the  more  skilful  the  diag- 
nostician. The  surgeon  who  faithfully  considers  these  tests 
and  promptly  applies  them  to  the  elucidation  of  his  case,  has 
skiKully  performed  his  duty  in  diagnosis. 


406  CIVIL  MALPEACTICE. 


CHAPTER  XV. 

SKILL  EST  TREATLIENT. 
FEACTUPwES. 

What  constitutes  skill  in  treatment  ?  The  same  general 
rule,  that  was  laid  down  in  the  chapter  on  "  Skill  in  Diagno- 
sis," in  respect  to  the  handling  of  the  injured  limb  and  in 
moving  the  patient,  should  be  observed,  namely,  to  be  as  gen- 
tle as  the  nature  of  the  case  will  permit. 

The  indications  of  treatment  are  four  in  number,  viz. :  — 

1.  To  put  the  fragments  in  as  near  apposition  as  possible  ; 

2.  To  keep  them  in  this  position ; 

3.  To  keep  down  or  allay  spasm  and  undue  inflammation ; 

4.  To  manage  the  accidents  that  may  occur  during  treat- 
ment. 

■The  first  indication  is  accomplished  by  gentle  extension 
and  counter-extension,  with  pressure  and  counter-pressure  at 
the  seat  of  the  fracture  ; 

The  second  by  splints,  bandages,  and  a  continuance  of  the 
extending  and  counter-extending  force ; 

The  third  by  anod^mes,  water-dressings,  &c. ; 

The  fourth  by  treatment  the  nature  of  the  accident  may 
require. 

1.  Bandages.  Let  me  call  the  attention  of  surgeons,  espe- 
cially the  junior  practitioners,  to  the  danger  of  using  the 
'•'■  primary  ^^  or  ^'- initial^''  bandage.  Notice  how  many  cases 
come  into  courts,  in  which  this  is  one  of  the  apparent  causes 
of  trouble.  Steele  v.  Neivton;  Wihnot  v.  Hoioard ;  Scudder 
V.  Crossan;  Kendall  y.  Broivn ;   Volmiith  y .  Hathaivay . 

The  older  surgeons  were  in  the  habit  of   applying  this 


SKILL  IN   TREATMENT.  407 

dressing  to  a  broken  limb  before  applying  the  lateral  splints. 
Prof.  Gross,  who  is  a  most  eminent  authority  in  matters 
pertaining  to  surgery,  in  his  article  on  bandaging,  System  of 
Surg.,  vol.  i.  p.  468  (3d  ed.),  advocates  its  use,  but  he  says 
further,  "  When  the  hand  of  a  master  is  not  present  to  direct 
and  guide  our  practice,  the  result  may  frequently  be  most 
disastrous  both  to  the  patient  and  surgeon."  This  qualifica- 
tion is  just  what  a  vast  number  of  practising  surgeons  lack  » 
especially  the  junior  members  of  the  profession  do  not  have 
it,  as  a  rule.  He  says  further  (lb.  p.  867)  :  "  Too  much 
caution  cannot  be  observed  in  the  use  of  the  bandage  in  the 
treatment  of  fractures.  It  is  an  agent  for  good  or  for  evil ; 
for  good,  if  applied  properly ;  for  evil,  if  apphed  improp- 
erly." 

The  object  to  be  attained  by  it,  i.  e.,  support  of  the  muscles 
and  thus  prevention  of  their  contraction,  and  the  protection 
of  the  limb  from  direct  contact  with  the  sides  of  the  splints, 
are  desirable.  The  same  end,  however,  can  be  reached  as 
well  by  properly  padding  the  splints,  and  by  the  use  of  the 
roller  bandage  iii  retaining  them.  The  danger  of  so  ligat- 
ing  the  limb  as  to  occasion  congestion,  inflammation,  and 
gangrene  is  so  great,  by  such  dressing,  that  the  surgeon 
would  hardly  be  held  "not  guilty,"  who  should  use  it.  I 
would  here,  therefore,  enter  my  earnest  protest  against  the 
use  of  this  dressing.  In  my  first  case  of  fracture  of  the  leg, 
another  surgeon,  presuming  on  his  seniority  in  practice,  ap- 
plied such  a  dressing,  contrary  to  my  objection.  (I  was 
then  just  from  the  instruction  of  the  late  Prof.  Daniel  Brain- 
ard,  of  Chicago,  who  earnestly  condemned  the  practice.) 
The  sequence  was  a  narrow  escape  from  a  suit  for  malprac- 
tice. I  was  exonerated  from  blame  in  the  case,  inasmuch  as 
I  had  two  intelligent  friends  present,  who  were  witnesses  to 
the  protest. 

Dr.  Ashurst  remarks  (Princip.  and  Prac.  of  Surg.,  223-6)  : 
"  Circular  compression  is  to  be  carefully  avoided,  as  swelling 
is  inevitable  after  a  fracture,  and  the  risk  of  gangrene  from 
this  cause  is  by  no  means  only  theoretical.     Hence,  as  a  rule, 


408  CIVIL  MALPKACTICE. 

in  the  early  stages  of  fractures,  no  bandages  should  he  applied 
heneath  the  splints.  Gangrene  is  the  most  serious  accident 
which  can  be  met  with  in  the  treatment  of  a  simple  fracture, 
and  may  be  due  either  to  arterial  obstruction  at  a  point  above 
the  seat  of  fracture,  to  venous  obstruction  due  to  swelling  of 
the  part,  or  to  too  tight  bandaging,  or  to  a  combination  of 
these  causes.  With  regard  to  tight  bandaging,  it  is  to  be 
remembered  that  a  bandage  may  be  sufficiently  loose  when 
applied,  and  yet  in  a  few  hours  may  become  the  cause  of 
great  constriction  from  subsequent  swelling  of  the  limb ; 
hence  the  importance  of  not  applying  a  bandage  beneath  the 
splints ;  it  is,  as  remarked  by  Mr.  Erichsen,  almost  invariably 
to  a  neglect  of  this  rule  that  the  occurrence  of  gangrene  from 
the  pressure  of  a  bandage  is  due.  Especially  is  this  true  in 
the  case  of  the  fore-arm,  in  fractures  of  which  part  this  acci- 
dent most  often  occurs.  It  should  not  be  forgotten,  however, 
that  this  accident  may  be  partly  or  entirely  due  to  arterial 
obstruction,  which  is,  of  course,  an  unavoidable  occurrence  ; 
hence  we  should  not  be  too  hasty  in  accusing  a  fellow-prac- 
titioner of  malpractice  on  account  of  such  an  accident,  for  it 
may  be  really  due,  at  least  in  some  measure,  to  causes  en- 
tirely beyond  control.  The  treatment  of  gangrene  occurring 
under  such  circumstances  must  vary  according  to  its  nature 
and  extent ;  if  it  be  due  to  constriction,  and  the  surgeon  for- 
tunately discovers  it  in  time,  he  must  instantly  remove  the 
bandages,  when  possibly  the  patient  may  escape  with  super- 
ficial sloughing.  If  complete  gangrene  has  occurred,  amj)uta- 
tion  of  course  becomes  necessary  ;  if  the  disease  show  a  dispo- 
sition to  self-limitation,  the  surgeon  may  await  the  formation 
of  the  lines  of  demarcation  and  separation ;  but  if  the  gan- 
grene be  of  the  rapidly  spreading  traumatic  variety,  immedi- 
ate removal  of  the  limb  must  be  practised  at  a  point  above 
the  furthest  limits  of  the  disease."  ^ 

In  Syme's  Surgery,  by  Newton,  p.  339,  we  find  the  "  im- 

'■  Gajigee,  On  Treatment  of  Fractures  of  the  Limbs,  advises  circular  compression  of 
the  limb  at  the  seat  of  fracture,  — advice  all  the  more  dangerous,  coming  from  such 
an  eminent  surgeon.    Am.  Jour.'  Med.  Sciences,  April,  1872,  p.  495. 


SKILL  m  TREATMENT.  409 

movable  dressing"  condemned,  for  the  reason  that  it  "is  not 
only  tedious  and  requiring  great  nicety  in  its  execution,  but 
unless  it  be  carefully  watched  must  expose  the  patient  to  the 
risk  of  mortification  or  other  bad  consequences,  from  alter- 
ation in  the  size  of  the  limb  subsequently  to  its  adjustment^ 
This  is  precisely  the  danger  to  be  apprehended  from  the 
"  initial  bandage."  The  editor  himself  says,  in  his  notes  on 
the  dressing  of  fractures :  "  It  should  be  the  object  of  the 
physician  to  incumber  the  limb  with  a,sfetv  coverings  as  pos- 
sible. The  entire  object  being  to  keep  the  ends  of  the  bones 
in  position ;  ivhatever  may  be  done  beyond  this  will  be  mani- 
festly ivjuriousy     lb.  340. 

2.  Setting.  Dr.  Ashurst,  in  speaking  of  the  reduction  or 
"setting"  of  fractures,  says  that  "it  consists  in  replacing  the 
fragments  by  manipulation  as  nearly  as  possible  in  their  nor- 
mal position  as  regards  each  other.  I  say  advisedly,  '  as 
nearly  as  possible,'  for  I  believe  with  Prof.  Hamilton,  that  it 
is  only  in  exceptional  cases  that  the  displacement  of  fractures 
can  be  entirely  overcome." 

I  have  been  induced  to  quote  thus  largely  from  Ashurst 
because  he  is  one  of  the  latest  writers  on  the  subject,  and 
stands  high  as  a  teacher  and  practitioner.  To  him  and  to 
Prof.  Hamilton  the  profession  owes  a  debt  of  gratitude  for 
the  honest  statements  they  have  made,  in  respect  to  the  con- 
ditions that  obtain  in  the  matter  of  fractures. 

3.  Time  for.  The  next  question  that  claims  our  considera- 
tion is,  when  should  a  fracture  be  reduced  —  immediately,  or 
not  till  the  inflammatory  action  consequent  upon  the  injury 
has  been  subdued  ?  "  No  greater  absurdity  and  cruelty  are 
conceivable  than  leaving  the  fracture  unadjusted."  Listen's 
Elements  of  Surg.  (Am.  ed.),  581.  "  Five  good  reasons  why 
broken  bones  should  be  reduced  as  soon  as  possible  :  1.  When 
the  injury  is  recent,  the  muscles  offer  less  resistance  ;  2.  Their 
resistance  is  increased  not  only  by  reaction  but  also  by  actual 
adhesions  between  their  fibres  ;  3.  Effusion  distends  both  the 
muscles  and  the  skin,  and  compels  the  limb  to  shorten ;  4. 
The  constant  goading  of  the  flesh  by  the  sharp  points  of  the 


410  CIVIL  MALPKACTICE. 

broken  bones  increases  the  muscular  contractions  ;  5.  The  pa- 
tient will  submit  readily  to  manipulation  and  extension  at 
first,  but  after  tbe  lapse  of  a  few  days  it  is  very  seldom  that 
he  will  permit  the  limb  to  be  in  any  manner  disturbed,  even 
if  he  is  assured  that  his  refusal  entails  upon  him  a  great  de- 
formity." Hamilton,  Frac.  and  Dis.  (3d  ed.),  44  et  seq.  "  It 
appears  singular  that  upon  a  subject  so  clear  as  this,  there 
should  be  any  difference  of  opinion.  It  certainly  requires  no 
great  knowledge  of  the  nature  of  accidents  to  discover  why 
such  cases  should  receive  the  earliest  possible  attention :  as 
long  as  the  ends  of  the  fragments  are  permitted  to  remain 
apart,  their  tendency  inevitably  must  be  to  excite  spasm  and 
inflammation,  thereby  increasing  the  suffering  of  the  patient 
and  retarding  his  cure."  Gross,  vol.  1,  865.  "  As  a  broken 
bone  is  a  constant  source  of  irritation  to  surrounding  parts, 
and  the  periosteum  is  liable  to  be  separated  to  a  greater  ex- 
tent in  proportion  to  the  spasmodic  motion  of  the  muscles,  it 
is  singular  that  any  doubt  could  exist  as  to  the  advantage  of 
setting  a  fracture  as  soon  as  possible."  H.  H.  Smith,  Op. 
Surg.,  vol.  1,  540.  "  Reduction  should  be  effected  as  soon  as 
possible,  for  the  reason  that  it  is  much  easier  for  the  surgeon 
and  much  less  painful  to  the  patient,  if  done  before  the  de- 
velopment of  inflammation ;  if,  however,  the  patient  is  not 
seen  until  a  later  period,  or  if  displacement  should,  from  any 
cause,  have  recurred,  the  surgeon  need  not  hesitate  at  any 
stage  of  the  case  to  effect  as  perfect  a  reduction  as  he  can, 
for  the  slight  additional  irritation  thus  produced  will  be  of 
much  less  consequence  than  the  evils  which  would  result  from 
continued  displacement."     Ashurst,  Princip.  and  Prac. 'Surg. 

Failure  to  reduce  a  fracture  promptly  would  constitute 
negligence,  which  we  shall  consider  more  in  detail  when  we 
come  to  treat  of  the  accidents  liable  to  occur  during  the  cure 
of  a  fracture. 

4.  Extension  and  counter-extension.  The  reduction  being 
effected,  means  must  be  provided  to  keep  up  extension  and 
counter-extension,  and  also  means  must  be  used  to  prevent 
lateral  and  antero-posterior  flexion  at  seat  of  fracture.     With 


SKILL  IN  TREATMENT.  411 

the  exception  of  fractures  of  the  lower  extremity  and  the 
humerus,  these  ends  are  accomplished  by  the  use  of  splints, 
pads,  and  bandages  alone.  In  fractures  of  the  humerus,  the 
extension  is  provided  for  by  leaving  the  elbow  and  a  portion 
of  the  upper  part  of  fore-arm  unsupported  by  the  sling  in 
which  the  hand  and  lower  part  of  fore-arm  rests,  the  weight 
of  the  elbow  and  fore-arm  thus  acting  as  an  extending  force. 
Directly  the  opposite  course  should  be  followed  in  fractures  of 
the  neck  of  the  scapula  and  the  acromion  and  coracoid  proc- 
esses. Here  the  weight  of  the  arm  would  be  apt  to  draw 
the  distal  fragment  away  from  its  normal  position,  hence  sup- 
port to  the  point  of  the  elbow  is  the  proper  treatment. 

In  fractures  of  the  lower  extremity,  especially  of  the  femur, 
we  are,  except  in  certain  cases,  which  will  be  indicated, 
obliged  to  use  other  means  for  the  prevention  of  shortening. 
The  means  advised  are  various.  In  fractures  of  the  leg  (tibia 
and  fibula),  surgeons  most  frequently  depend  upon  position 
and  splints  alone  to  secure  extension  and  counter-extension. 
Among  eminent  surgeons  who  adopt  this  plan,  may  be  men- 
tioned, Gross,  Hamilton,  Bauer,  Salter,  Welsh,  Hodgen  of 
St.  Louis,  and  others.  See  paper  on  resistance  of  muscles 
by  Dr.  Montgomery  in  Am.  Jour.  Med.  Sci.  for  July,  1872. 

Hamilton  remarks  (Fract.  and  Dis.,  493,  6th  ed.)  :  "  It  is 
only  occasionally  that  in  fractures  of  the  leg,  permanent  ex- 
tension and  counter-extention  can  be  employed ;  an  assertion 
which,  however  much  it  may  excite  surprise,  experience  will 
prove  true." 

Gross  says  (Syst.  of  Surg.,  vol.  1,  p.  935,  3d  ed.)  :  "  The 
most  simple  contrivance  for  the  treatment  of  fracture  of  tibia 
is  a  tin  case,  accurately  shaped  to  the  limb,  provided  with  a 
foot  piece,  and  reaching  a  few  inches  above  the  knee.  A 
bandage  is  applied  in  the  usual  manner,  and  any  tendency  to 
displacement  is  easily  counteracted  by  means  of  a  compress, 
arranged  so  as  to  bear  gently  and  equably  upon  the  ends  of 
the  fragments.  I  have  never  found  it  necessary  to  employ 
any  other  apparatus  than  this,  no  matter  where  the  tibia 
was  broken.      When   the   fracture   involves   the  malleolus, 


412  CIVIL  MALPEACTICE. 

(ankle-joint),  the  foot--piece  will  effectually  prevent  displace- 
ment." 

There  have  been  numerous  methods  devised  by  surgeons 
for  the  j)urpose  of  securing  extension.  Among  these  devices 
may  be  mentioned  Hutchinson's,  Neil's,  Gilbert's,  Crandall's, 
the  double-inclined  plane,  Jarvis's  Adjuster,  and  its  modifica- 
tion and  patenting  by  a  man  in  New  York,  all  of  which  but 
illy  subserve  the  purpose  for  which  they  were  designed,  — 
that  of  Neil,  extension  being  secured  by  means  of  adhesive 
strips,  being  the  most  unobjectionable.  The  device  suggested 
by  Dr.  Montgomery,  Rochester,  New  York,  is  also  one  of 
great  value.  It  is  simply  a  wooden  sole  the  width  and 
length  of  the  foot,  to  which  it  is  attached  by  adhesive  strips. 
Extension  is  secured  by  a  cord  which  passes  through  the  sole 
in  the  line  of  the  axis  of  the  leg.  This  cord  is  carried  over 
a  pulley  in  the  usual  manner.  For  difficulties  in  applying 
extension,  see  his  paper.  Am.  Jour.  Med.  Sci.,  April,  1871. 

In  fractures  of  the  shaft  and  upper  end  of  the  femur,  there 
has  been  a  difference  of  opinion  as  to  what  position  the  limb 
should  be  kept  in  during  the  process  of  repair.  Dr.  Ashurst, 
in  his  remarks  upon  the  subject,  says  :  "  I  have  no  hesitation 
in  expressing  my  preference  for  the  treatment  of  these  in- 
juries by  means  of  the  straight  position  with  moderate  exten- 
sion, whenever  that  mode  of  treatment  is  applicable.  In 
cases  of  im2:>acted  fracture,  extension  is  undesirable,  and 
such  cases  may  be  treated  by  position  alone,  the  joint  being 
fixed  by  means  of  the  long  splint,  in  any  of  its  varieties,  or 
simply  supported  by  means  of  heavy  sand  bags  placed  on 
either  side  of  the  injured  member.  If  the  fracture  be  unim- 
pacted,  the  same  treatment  should  be  employed,  with  the 
addition  of  moderate  extension.  Counter-extension  may  be 
made  by  means  of  a  perineal  band  fastened  to  the  head  of  the 
bed,  or,  which  is  usually  sufficient,  simply  by  elevating  the 
foot  of  the  bed,  thus  utilizing  the  weight  of  the  body  itself 
as  the  counter-extending  force.  It  is  right  to  say  that  there 
are  certain  cases,  especially  of  intra-capsular  fracture',  in  old 
persons,  in  which  no  apparatus  can  be  borne,  and  in  which 


SKILL  IN  TREATMENT.  413 

even  confinement  to  bed  is  fraught  with  dangerous  conse- 
quences ;  under  such  circumstances  the  injured  limb  should 
be  simply  laid  across  pillows,  as  recommended  by  Sir  Astley 
Cooper,  until  the  pain  and  inflammation  which  attend  the 
injury  have  subsided,  the  patient  being  then  allowed  to  get 
up  in  a  chair  or  on  crutches  ;  bony  union,  under  such  cir- 
cumstances, cannot  be  hoped  for,  and  the  general  rather  than 
the  local  condition  of  the  patient  should  be  the  object  of  at- 
tention."    Princip.  and  Pract.  Surg.  259-60. 

For  the  dangers  attending  an  excess  of  the  extending  and 
counter-extending  force,  the  reader  will  profit  by  examin- 
ing the  Transactions  of  the  last  (May,  1872)  meeting  of 
the  American  Medical  Association,  Surgical  Section.  I 
abridge  :  "  Dr.  Sayre,  of  New  York,  thought  that  the  treat- 
ment by  extension  and  counter-extension  was  being  carried 
too  far.  Every  ounce  of  force  applied  beyond  that  necessary 
to  bring  the  fragments  into  exact  adjustment  was  injurious  ; 
every  ounce  short  of  this  was  insufficient.  Dr.  Mussey,  of 
Cincinnati,  had  a  case  under  extension  six  weeks,  with  no 
union.  He  then  took  off  extension,  and  union  soon  followed. 
A  delegate  from  South  Carolina  thought  non-union  scarcely 
ever  due  to  over-extension.  Non-union  was  as  frequent 
under  the  long  splint  as  under  the  weight  and  pulley  —  per- 
haps more  so.  Dr.  E.  M.  Moore,  of  Rochester,  thought  the 
weight  and  pulley  gave  better  results  than  the  straight 
splint  of  Desault,  but  we  had  become  so  anxious  to  avoid  all 
shortening  that  we  often  put  on  too  much  weight.  In  trans- 
verse fractures,  if  the  limb  was  kept  in  its  full  length,  the 
fragments,  though  at  first  in  contact,  would  soon  become 
slightly  separated  by  the  absorption  of  the  spicula  of  bone 
projecting  from  their  ends ;  and  non-union  would  ensue. 
Dr.  A.  C.  Post,  of  New  York,  thought  the  limb  might  be 
lengthened  by  too  much  extension,  even  by  extension  not  suf- 
ficient to  cause  discomfort.  Examining  and  measuring  all 
the  compound  fractures  of  the  thigh  under  treatment  in  the 
Washington  Hospitals,  toward  the  close  of  the  war  (where 
he  found  Buck's  extension   giving   incomparably   the   best 


414  CIVIL  MALPRACTICE. 

results),  he  had  discovered  one  case  of  slight  elongation  in 
an  adult.  Dr.  Gurdon  Buck,  of  New  York,  claimed  for  this 
method  (extension  by  adhesive  plaster,  pulley,  and  vs^eight, 
counter-extension  by  raising  the  foot  of  the  bed),  which  bore 
his  name,  that  it  offered  the  most  efficient  means  of  main- 
taining uninterrupted  extension  without  discomfort  to  the 
patient.  It  was  especially  adapted  to  children.  In  all  his 
experience  but  one  case  of  non-union  was.  fairly  attributable 
to  over-extension  ;  this  was  the  case  of  a  healthy  adult,  and 
the  surgeon  ha^dng  the  case  in  charge  had,  during  the  whole 
treatment  (ten  weeks),  kept  on  a  weight  of  more  than 
twenty  pounds.  The  case  had  suggested  a  rule  which  he 
had  since  followed,  not  to  maintain  a  heavy  weight,  with  hope 
of  securing  an  unshortened  limb,  beyond  the  first  fortnight. 
Dr.  Gregory,  of  Mo.,  thought  that  elongation  of  the  limb  in 
young  subjects,  where  the  fracture  was  in  the  lower  third  of 
the  femur,  might  be  readily  explained  by  increased  growth 
of  the  epiphysis  from  fluxion  to  the  part.  Non-union  might 
be  due  to  many  other  causes,  some  of  them  obscure.  The 
obstinacy  of  Dr.  Buck's  case  would  seem  to  imply  that 
there  was  some  other  influence  at  work  to  prevent  repair  than 
the  twenty  pounds'  extension."  Medical  Record,  June  15, 
1872. 

The  question  of  extension  and  counter- extension  was  again 
brought  up  for  discussion,  at  the  meeting  of  the  Association, 
in  1874.  Upon  this  occasion  Prof.  L.  A.  Sayre  presented  a 
report  on  fractures  accompanied  by  a  tabulated  statement  of 
thirty-one  cases  treated  at  Bellevue  Hospital. 

After  defining  "  accuracy  of  adjustment "  to  be  "  the  per- 
fectly normal  condition  of  the  bone,  as  to  length  and  posi- 
tion," his  "  plan  is  to  dispense  with  all  continuous  extension 
and  counter-extension,  as  useless  and  injurious."  Report  on 
Shortening  in  Fractures,  to  HI.  Med.  Soc,  1875.  Dr.  Pierce, 
Lemont,  111. 

But  this  table  shows  a  want  of  "  accuracy  of  adjustment," 
in  the  fact  that  many  of  the  cases  show  shortening.  See 
Table  B,  Prognosis  in  Fractures. 


SKILL  IN  TREATMENT.  415 

Two  moiitlis  subsequent  to  the  Report  of  Prof.  Sayre, 
Prof.  Hamilton  published  in  the  New  York  Med.  Jour.  (Aug. 
1874)  the  result  of  treatment,  of  twenty-two  cases  with,  and 
nine  cases  treated  without  the  "  apparatus  immobile."  See 
Table  C. 

It  is  only  in  fractures  of  processes  that  lengthening  of 
fractured  bones  would  be  complained  of.  The  muscular  con- 
traction would  tend  to  draw  the  process  away  from  the  shaft 
or  body  of  the  bone,  hence  the  necessity  of  so  dressing  the 
part  that  the  fragments  would  be  kept  in  as  near  apposition 
as  possible.  For  this  reason,  in  fractures  of  the  olecranon, 
the  parts  should  be  kept  in  the  straight  position,  else  by  the 
action  of  the  triceps  muscle  the  process  would  be  carried  so 
far  from  the  ulna,  that  the  power  of  extension  would  be 
thereafter  lost.  The  great  danger  to  be  apprehended  in 
fractures  of  this  joint  is  anchylosis,  and  this  will  occur  irre- 
spective of  the  position  in  which  the  arm  is  dressed. 

The  action  of  the  muscles  in  separating  the  fragments  is 
also  illustrated  in  fractures  of  the  patella,  acromion  and  cora- 
coid  processes  of  the  scapula,  and  in  all  similar  detachments 
of  processes  and  apophyses. 

5.  Splints.  In  fractures  -of  the  humerus,  radius,  ulna, 
femur,  tibia,  and  fibula,  splints  are  requisite.  The  substances 
from  which  these  are  made  is  not  material.  Lead,  sheet- 
iron,  wire,  zinc,  tin,  horn,  whalebone,  straw,  rushes,  reeds, 
wooden  splints,  so  they  are  not  carved  ones,  warranted  "  to 
fit  any  limb,"  felt,  paste-board,  binders-board,  leather,  heavy 
Manilla  paper,  gutta  percha,  and  for  immovable  dressing,  the 
different  forms  of  starch,  dextrine,  shellac,  and  plaster  of 
Paris  dressings. 

Attention  should  be  paid  to  their  construction  rather  than 
to  the  material.  The  points  to  be  aimed  at,  are,  to  have  them 
wider  than  the  limb  ;  of  proper  length,  neither  too  short  nor 
too  long ;  with  portions  cut  away  so  that  undue  pressure  will 
not  be  inflicted  on  bony  prominences  ;  and  well-padded.  If 
they  are  covered,  as  recommended  by  Professor  Hamilton, 
the  retentive  bandage  can  be  sewed  to  the  edge,  and  they 
will  be  less  likely  to  become  loosened  and  displaced. 


416  CIVIL  MALPRACTICE. 

For  fractures  of  the  humerus  a  splint  curved  so  as  to  fit 
the  top  of  the  shoulder  will  insure  all  the  quietude  the  joint 
is  capable  of ;  it  usually  has  associated  with  it  a  shorter 
inside  splint. 

For  fractures  of  the  radius  and  ulna  the  splints  should 
reach  from  the  elbow  to  middle  of  hand  or  tips  of  fingers, 
except  the  fracture  be  above  the  middle  third,  when  they 
need  not  be  so  long.  The  "  pistol  splint,"  so  frequently 
spoken  of  in  these  cases,  is  simply  a  splint  curved  more  or 
less  on  its  edge,  at  one  end  like  a  pistol  handle.  It  has  been 
variously  modified  by  different  surgeons,  notably  by  Ham 
ilton.  Bond,  E.  P.  Smith,  G.  F.  Shrady,  Hays,  Nelaton, 
Robt.  Smith,  and  Erichsen.  The  last  three  "  recommend 
this  peculiar  form  only  in  the  dorsal  splint;"  while  the 
others,  with  most  other  American  surgeons,  "  place  the  pistol- 
shaped  splint  against  the  palmar  surface  of  the  fore-arm  and 
hand  "  Prof.  Stephen  Smith,  of  New  York,  than  whom  there 
is  no  better  surgical  authority,  employs  only  straight  splints 
in  the  treatment  of  fractures  of  the  fore-arm.  Care  must  be 
taken  that  the  palmar  splint  is  not  applied  too  high  upon  the 
arm,  lest  when  the  fore-arm  is  flexed  too  strong  pressure  be 
made  in  the  bend  of  the  elbow,  by  its  upper  end. 

Splints  for  fracture  of  lower  extremity  have  already  been 
referred  to.  For  fuller  information  the  reader  is  referred  to 
works  of  Hamilton,  Gross,  Ashurst,  Smith,  Holmes,  and 
other  standard  writers  on  Surgery. 

If  there  was  nothing  more,  the  innumerable  forms  of  splints 
that  have  been  recommended  for  the  treatment  of  fractures 
would  show  the  immense  difficulties  of  such  treatment. 

6.  Fi'actiire-heds.  To  a  man  with  a  broken  thigh  or  leg, 
a  comfortable  bed  to  lie  upon  is  of  the  first  importance. 
"  The  practitioner  who  fails  to  give  the  jjroper  instructions 
respecting  it  is  guilty  of  gross  dereliction  of  duty."  Gross, 
Surg.,  vol.  1,  p.  865.  On  the  same  subject  Hamilton  remarks, 
when  speaking  of  fractures  of  the  thigh  (Fract  and  Dis.,  445, 
5th  ed.)  :  "  Where  some  form  of  fracture-bed  cannot  be  pro- 
cured, or  extemporaneously  constructed,  and  the  patient  is 


SKILL   IN   TEEATMENT.  417 

compelled  to  lie  upon  a  common  cot-bedstead,  or  a  common 
post-bedstead,  or  upon  the  floor,  I  cannot  think  the  surgeon 
ought  to  be  held  in  any  degree  responsible  for  the  result." 
H.  H.  Smith  is  equallj^  decided  in  respect  to  this  matter.  He 
says  (Op.  Surg.  vol.  1,  p.  606)  :  "If  the  patient  has  a  fract- 
ured thigh,  leg,  or  cranium,  or  any  injury  by  which  he  is 
likely  to  be  confined  to  his  bed  for  some  days  or  weeks,  the 
bed  upon  which  he  is  to  lie  must  be  prepared  for  that  pur- 
pose." 

7.  Complications.  After  the  reduction  of  a  fracture,  and 
the  application  of  those  means  for  the  retention  of  the  broken 
bones  in  apposition,  attention  must  be  given,  every  day,  or 
twice  a  day,  if  possible,  to  the  accidents  that  may  follow  the 
injury  or  the  dressing.  Paralysis  of  the  bladder,  especially 
in  elderly  patients,  demands  care.  So,  also,  erysipelas,  de- 
lirium tremens,  and  tetanus,  may  call  for  treatment.  Bed- 
sores, and  ulcerations  from  too  long  continued  pressure  are 
among  the  most  frequent  sequelae.  Ulceration  is  partic- 
ularly apt  to  occur  upon  the  heel,  or  upon  the  internal  or  ex- 
ternal malleolus.  ~  This  trouble  is  to  be  obviated  by  shifting 
the  pressure  to  some  other  part  of  the  limb.  Ulceration 
upon  the  heel  can  generally  be  prevented  by  a  bladder,  dis- 
tended with  air  or  water,  placed  beneath  the  heel,  and 
changed  as  often  as  necessary,  or  by  a  wide  rubber  band 
passing  beneath  the  limb  and  attached  to  the  upper  edge  of 
the  splints,  or  even  by  a  piece  of  cloth  attached  in  the  same 
manner.  The  perineal  bandage  and  double-inclined-plane, 
it  is  hoped,  will  soon  be,  if  they  are  not  already,  classed 
amona:  the  thinsrs  that  were.  When  this  has  been  accom- 
plished  we  shall  hear  no  more  of  perineal  ulceration,  which 
so  frequently  follows  this  doubtful  form  of  dressing. 

DISLOCATIONS. 

The  indications  of  treatment  are  chiefly  three,  viz. :  — 

1.  To  replace  the  bone  in  its  normal  position. 

2.  To  prevent  its  re-dislocation. 

27 


418  CIVIL  MAI.PEACTICE. 

3.  To  keep  down  and  allay  undue  inflammation,  and  re- 
store the  functions  of  the  limb. 

The  first  indication  is  accomplished  by  extension  and 
counter-extension,  or  by  manipulation  alone,  which  is  the 
preferable  mode,  as  it  is  generally  the  least  painful,  least  apt 
to  inflict  additional  injury  upon  muscles  and  ligaments,  and 
may  succeed  where  extension  and  counter-extension  would 
fail.  Manipulation  consists  simply  in  rotating  the  head  of 
the  bone  towards  the  socket,  from  which  it  has  been  dislo- 
cated, causing  it  to  pass  back  in  a  reverse  manner  to  the  one 
by  which  it  left  its  proper  position. 

The  second  is  accomplished,  in  the  upper  extremity,  by 
bandages  and  slings,  keeping  bone  in  such  a  position  as  will 
tend  to  prevent  its  re-displacement.  The  same  end  is  at- 
tained in  the  lower  extremity  by  rest,  usually  in  the  recum- 
bent position. 

The  third  indication  is  met,  as  in  fractui-es,  by  proper  reg- 
imen, anodynes,  water-dressings,  and  subsequently  by  stimu- 
lating and  anodyne  liniments,  fomentations,  methodical  fric- 
tions, pressure,  and  passive  motion. 

The  great  importance  of  dislocations,  difficulties  in  diagno- 
sis, &c.,  would  seem  to  require  a  more  extended  notice  in  this 
connection,  but  on  account  of  their  importance  the  reader  is 
referred  to  standard  works  upon  this  form  of  injury. 

AMPUTATIONS. 

In  respect  to  amputations  there  is  much  error  prevalent. 
The  people  suppose  that  Avhoever  has  performed  an  opera- 
tion of  this  character  must  necessarily  be  an  eminent  sur- 
geon. The  profession,  on  the  other  hand,  is  of  opinion  that 
almost  any  one  can  perform  the  operation.  It  is  here  that 
errors  in  judgment  should  be  followed  by  punishment,  if  ever. 
It  is  not  the  mechanical  skill  that  would  be  called  in  ques- 
tion, as  much  as  the  decision  in  respect  to  the  necessity  for 
the  operation.  To  determine  questions  on  this  point  requires 
the  highest  degree  of  surgical  skill  and  judgment. 

The  necessity  being  answered  in  the  affirmative,  we  have 


SKILL  IN   TREATMENT.  419 

then  to  determine  at  what  time  the  operation  should  be  per- 
formed. During  "  shock,"  or  the  period  of  reaction  ?  Con- 
sideration of  this  question  is  of  the  greatest  moment  to  the 
patient.  "  Postpone  a  resort  to  the  knife  until  there  is  satis- 
factory evidence  of  reaction ;  until,  in  a  word,  warmth  and 
color  return  to  the  surface,  the  pulse  beats  vigorously  at  the 
wrist,  and  the  sufferer  regains,  in  some  degree,  his  conscious- 
ness and  courage.  On  the  other  hand,  care  is  taken  not  to 
wait  until  the  part  or  system  are  assailed  by  inflammation, 
which,  under  such  circumstances,  often  extends  with  fright- 
ful rapidity,  placing  the  case,  perhaps  literally  beyond  the 
resources  of  surgerj'^,  in  the  course  of  a  few  hours.  There  is, 
therefore,  a  time  when  interference  must  be  avoided,  not  less 
than  when  it  must  be  courted.  The  limits  of  these  periods 
are  not  always  well  defined,  and  hence  must  be  left,  in  each 
individual  case,  to  the  judgment  of  the  attendant."  Gross's 
Surg.  vol.  1,  p.  498. 

"  I  am  now  prepared  to  affirm,  that  the  period  of  reaction, 
or  the  primary  period,  is  the  best  point  of  time  for  amputa- 
tion, and  that  the  immediate  or  period  of  shock  is  not  the 
best,  but  that,  on  the  contrary,  it  is  an  imminently  danger- 
ous period  ;  and  yet  I  would  make  an  amputation  then,  if 
the  patient  were  bleeding  to  death,  and  I  could  not  tie  the 
arteries,  or  if  there  were  spicula  of  bone  projecting  into  the 
nerves  and  producing  spasms  ;  or,  if  the  limb  were  nearly 
severed  by  a  cannon  ball."  Hamilton,  Lecture  on  Amputa- 
tions ;  Med.  Record,  vol.  1,  p.  330.  See,  also,  Pennsylvania 
Hospital  Reports,  vol.  1,  p.  149. 

It  will  be  seen  from  the  foregoing  that  "  skill"  will  not  be 
shown,  alone,  in  the  mere  operation  of  removing  the  limb, 
but  underlying  and  preceding  the  operation  there  are  ques- 
tions to  be  determined  of  vastly  more  importance.  Nor  are 
the  questions  just  reviewed  the  only  ones.  Of  no  less  im- 
portance is  the  question.  At  what  point  shall  the  operation 
be  performed  ?  The  older  surgeons  had  points,  which  they 
termed  "  points  of  election."  "As  these  points  have  been  so 
frequently  changed,  indeed,  never  fully  established,  modern 


420  CIVIL   MALPRACTICE. 

surgery  has  formulated  a  rule  upon  which  to  declare  the 
'  place  of  election.'  It  is  this :  inasmuch  as  the  fatality  fol- 
lowing amputations  diminishes  as  we  get  farther  and  farther 
away  from  the  body,  the  practice  now  is  very  generally 
adopted,  to  amputate  at  that  point  at  which  we  can  save  the 
most  of  the  limb."  This  rule  is  not^  however,  applicable  to 
amputations  a  few  inches  below  the  knee  ;  here  the  "  point 
of  election  "  is  the  knee  joint. 

Regard  is  also  had  to  the  method,  whether  by  the  circular 
or  flap  operation.  This  is  not  of  so  much  importance,  good 
results  depending  more  upon  the  subsequent  treatment.  As 
to  this,  the  same  general  rules  applicable  to  fractures  and 
dislocations  are  appropriate.  The  resulting  hemorrhage  will 
need  the  surgeon's  especial  care. 


PROGNOSIS  IN  FRACTURES  421 


CHAPTER   XVI. 

PROGNOSIS  IN  FRACTURES. 
TABLES. 

Cases  numbered  by  figures  are  derived  from  Professor 
Hamilton's  Report  on  Deformities  after  Fractures,  made 
to  the  American  Medical  Association,  and  published  in  its 
Transactions  for  the  years  1855-6-7,  So  large  a  number  of 
cases  as  he  has  presented  were  never  tabulated  before.  They 
are  of  the  greatest  value,  showing,  as  they  do,  what  has  and 
has  not  been  accomplished  by  surgeons  in  different  countries, 
in  the  treatment  of  this  class  of  injuries. 

Cases  numbered  by  letters  and  Roman  numerals  have  been 
tabulated  from  my  own  examinations,  from  private  corre- 
spondence, and  from  medical  journals.  These  will  supple- 
ment, to  a  slight  extent,  the  tables  of  Professor  Hamilton. 

With  but  few  exceptions,  there  are  no  gunshot  or  railroad 
injuries  reported  in  these  tables. 

TABLE  L  — HUMERUS. 

Fractures  of  Anatomical  Neck  and  Head. 

Professor  Hamilton,  in  his  report,  describes  ten  cabinet 
specimens  :  — 

1.  Irregular  deposits  of  bone. 

2.  Irregular  callus.     Shaft  completely  rotated. 

3.  Slight  callus.     Slight  impaction. 

4.  Suppuration  ensued.  A  year  after,  Brainard,  of  Chi- 
cago, removed  the  fragment. 


422 


CIVIL  MALPRACTICE. 


5.  Suppuration  ensued.  Fragment  became  loose,  necrosed. 
Three  months  after,  Brainard  removed  it. 

6.  Broken  at  junction  of  head  with  shaft  and  through 
tuberosities  to  half  inch  below  the  greater. 

7.  Similar  to  No.  6.     No  union. 

8.  Through  both  anatomical  and  surgical  necks.  Artic- 
ulating surface  of  head  turned  so  as  to  unite  with  shaft ; 
broken  surface  of  head  articulates  with  glenoid  cavity. 

9.  Fragment  slightly  displaced. 

10.  Head  united  to  shaft  at  right  angles. 


TABLE  XL  — FRACTURES   OF   THE   HUMERUS. 
Uppek  Third.     [Separation  of  Epiphysis.) 


, 

, 

6 

■3 

Result. 

o 

o 

~ 

"S 

•6 

to 

a 

o  „; 

a 

S 

u^  s 

1— t 

0     • 

o 

» 

fc  3 

u 

'a 

o-g 

g^ 

CT3 

0-3 

•Kg 

o 

11 

Treatment. 

° 
1 

3    o 

Remarks. 

ll 

6 

&s 

Sg 

« 

[5 

'3 

O  .3 

S  a 

!5 

< 

H 

M 

L 

o 

P 

< 

fn 

1 

13  m. 

5  m. 

Simple. 

Sling,  &c. 

N.U. 

- 

_ 

Cannot  raise  his  arm. 

Im. 

a 

19  y. 

SJm. 

M 

R 

Com- 
pound. 

Necrosis,  tardy  cure 
M.  ^  S.   Reporter, 
vol.  13,  p.  190. 

Im. 

b 

14  y. 

Im. 

M 

R 

Simple. 

Swinburne's 

dressing. 

tr. 

1  m. 

- 

Med.    Times,    June 
13,  1874. 

P. 

c 

16  y. 

ly. 

F 

- 

Simple. 

Swinburne's 
dressing. 

u. 

5  w. 

- 

Med.     Times,    June 
13, 1874. 

P. 

c 

6y. 

3m. 

M 

- 

Simple. 

Swinburne's 
dressing. 

u. 

- 

- 

Med.     Times,    June 
13, 1874. 

P. 

e 

18  y. 

3  m. 

M 

L 

Simple. 

Swinburne's 
dressing. 

V. 

See  MeU.    Times  for 
this  fract.  simulat- 
ing dislocation. 

Im. 

f 

13  y. 

2w. 

M 

- 

Simple. 

Supposed     dislo- 
cation. 

N.  U. 

- 

- 

Med.  Re  cord,  Ua,j  1, 
1874. 

- 

g 

16  y. 

2  m. 

M 

L 

Simple. 

Splints,    disloca- 
tion. 

- 

- 

lin. 

See  above  paper  for 
errors  in  diagnosis. 

Im. 

h 

-9y. 

3w. 

N.  U. 

Supposed  at  first  to 
be  fract.  of  acro- 
mion.    Ibid. 

Im. 

i 

18  y. 

- 

M 

- 

Splint  &  sling. 

U. 

- 

- 

See  same  paper. 

Im. 

PROGNOSIS  IN  FRACTURES. 


423 


TABLE   II.— FRACTURES    OF  THE  HUMERUS  {Continued). 
Surgical  Neck. 


o 

o 

1 

J3 

Result. 

^ 

■6 

ba 

a 

"§■6 

J2   ,^ 

0  -a 
"  2 

o 

§2 

Treatment. 

a 

u 
o 

a 

s 
a 

■«.5 

o  a 

3  o 

Remarks. 

o  -g 

■g  ^ 

6 

S>5 
< 

S  g 

M 

R 

a 

J3 

S«2 

Oi 

2 

65  y. 

Iv. 

Simple. 

Dressing    first 

U. 

_ 

- 

—             — 

P. 

week. 

3 

62  V. 

2  m. 

M 

R 

Simple. 

One    long    gutta 

V. 

- 

- 

—             — 

P. 

4 

12  y. 

4  m. 

M 

L 

Simple. 

percha  splint. 

One    long    gutta 

percha  splint. 

u. 

21  d. 

lin. 

Motion  unimpaired, 
lower  fragment 
projects  forwards. 

Im. 

1) 

43  y. 

2y. 

^r 

R 

Simple. 



N.  D. 

_ 

lin. 

—               — 

Im. 

6 

15  y. 

10  m. 

M 

L 

Simple. 

Lateral  splints, 
&c. 

U 

10  d. 

l^in. 

Motion  unimpaired : 
fragments  project 
forwards. 

7 

30  y. 

6w. 

M 

L 

Compli- 
cated. 

Lateral   splints, 
pad  in  axilla 
&c. 

Lateral  splints. 

u. 

6  w. 

- 

Motion  of  joint  per- 
fect. 

P. 

8 

23  V. 

6w. 

M 

. 

Compli. 

u. 

6w. 

- 

Very  slight  bend. 

P. 

n 

45  y. 

2y. 

AI 

1, 

Trans- 

P. Paris,  ball   in 

u. 

ftw. 

No. 

Disloc.  head  in  axil., 

P. 

verse. 

axil. 

Reeder,  Lacon,  111. 

h 

52  y. 

4  m. 

M 

T, 

Trans- 

Hamilton's 

u. 

6  w. 

No. 

wer   frag,  slightly 

^m. 

verse. 

splint. 

forward.    Self. 

c 

66  y. 

6  m. 

F 

L 

Oblique. 

Three  splints. 

u. 

6w. 

lin. 

Wanzer,   Chicago 
Med.  Jour.,  July, 
1867. 

im. 

d 

74  y. 

- 

M 

- 

Sinxple. 

Roller  bandage 
and  position. 

u. 

~ 

" 

Ashurst,  Am    Jour. 
Med.  Sci.,July, 
1868. 

9y. 

\r 

R 

u. 

_ 

_ 

Ashurst,   Am.  Jour. 

- 

Med.    Sci.  July, 

18     . 

Shaft.     (Upper  Third.) 


54  y. 


11  y. 

30  y. 
38  y. 
35  y. 
41  y. 

20  y. 
30  y. 
22  y. 

67  y. 


3y. 


8  w. 
2  m. 

6  m. 

22  d. 

2iy. 

3y. 
2y. 
3y. 
2y. 


Simple     Lateral    splints 
trans,     and  paste  ban- 


Simple.    Lateral  splints. 
Simple     Lateral  splints, 
oblique,      paste  bandage 
Simple    Lateral  splints, 
oblique. I 

Compli-   Lateral  gutta  per 
cated.  1    &  paste  splints, 
Simple.  '4  wood  splints. 


Simple,  j  Pasteboard 

I  splints. 
Simple.  iPasteboard 

j  splints. 
Simple.  :4  board  splints. 

Simple.  Scultetus'  band- 


U. 


u. 

u. 

u. 

N.  U. 

u. 


8w. 
38  d. 


5  m. 


5  w. 


U. 

U. 

U.    I    6  w. 

U.        3  m, 


J  in. 

^  in. 

None. 
None. 

lin. 

?  in. 


Case  of  fragilitas  os- 
sium.     Eighteen 
months  aft.  broke 
left   humerus  ; 
broke    right  arm 
againinlSmonths. 

Complicated   with 

delirium  tremens,  j 
Use  of  limb  perfect.  ; 

Died  22d  day. 

Hamilton,  Galesb'g,i  Im. 

111.    No  deformity,! 

use  of  limb  perfect. 
Reece,  Abingdon, 111.    P. 


Im. 


Use  of  limb  perfect. 
Reece. 

Large    callus    re- 
mains.    Aldrich. 

Large  callus,  limb 
not  useful.  Al- 
drich, Gilson,  111. 


P. 


424 


CIVIL  MALPRACTICE. 


TABLE   IL  — FRACTURES   OF   THE   HUMERUS  (Continued). 
Shaft,     {Middle  Third.) 


— 

• 

i 

2      ja 

Result. 

o 

o 

o 

■6 

tb 

a 

d   • 
» -a 

S3   '> 

5^  3 

1    Is 

Treatment. 

□ 

u 
o 

1 

S 

s 
a 

0-3 
°  .a 

Kemabks. 

h 

.Is 

d 

bD  ^ 

.1-    s 

bC.         ^^ 

5 

J3 

Sec 

S  °' 

^ 

■< 

H          --fe 

:^      O 

p 

< 

Ol 

14 

6y. 

ly.  M 

I    Simple. 

Lateral  splints. 

u. 

_ 

_ 

_              _ 

p. 

15 

8y. 

25  y.  M 

L    Simple. 

Lateral    splints, 
&c. 

U. 

- 

~ 

—              — 

p. 

16 

Birth. 

10  m.  F 

L    Simple 
trans. 

Lateral  splints. 

u. 

14  d 

~ 

Congenital. 

p. 

17 

45  y. 

ly.   M 

1    Simple 
trans. 

— 

u. 

4  m. 

- 

Syphilitic. 

p. 

18 

63  y. 

2y.   M 

i    Simple. 

— 

u. 

- 

lin. 

—              — 

Im. 

19 

33  y. 

3!)y.   M 

L.    Simple. 

Lateral  splints. 

u. 

- 

Jin. 

—              — 

Im. 

20 

13  y. 

5  w.  M 

-  Simp.  & 
oblique. 

— 

u. 

~ 

iin. 

—              — 

Im. 

21 

35  y. 

5  m.M 

R    Simple. 

— 

N.  U. 

_ 

- 

Anchylosis. 

Im. 

22 

35  y. 

6  m.M 

L    Simple. 

First,  right-angle 
splint ;      subse- 
quently straight 
position. 

u. 

Union  delayed. 

P. 

23 

30  y. 

2  m.M 

R  Commi- 
nuted. 

Long  giitta  per. 
and  sling,  &c. 

u. 

~ 

' 

—              — 

P. 

a 

12  y. 

6y.  M 

R  Comp'd 
commi- 
nuted. 

Starch. 

u. 

7w. 

|in. 

Eeavy  proTisionnl 
callus.     Reeder. 

Im. 

b 

23  y. 

8  m.xM 

L    Simple. 

Hamilton's 
splint. 

u. 

6w. 

iin. 

Ensheathing  callu.s 
still  present. 

Im. 

c 

24  y. 

14  y.  M 

R  Commi- 
nuted. 

Pasteboard 
pplints. 

u. 

~ 

' 

junshot.  Necrosis. 

Im. 

ft 

26  y. 

4  m.  M 

L    Simple. 

Straight  splints. 

u. 

- 

~ 

Co.  Hospital,  Chica- 
go.    IVnn. 

Im. 

e 

12  y. 

ly.  M 

11    Simple. 

Pasteboard 
splints. 

IT. 

- 

None. 

Reece,  Abingdon, 

111. 

P. 

f 

40  y. 

-     M 

L    Simple. 

" 

N.U. 

Gott.     Am     Jour. 
Med.  Sci.,  Jan., 
1870. 

e 

Toy. 

-     M 

-    Simple. 

Bandage  only 
with  position. 

U. 

Ashurst.    Am.  Jour. 
M  fl.     Sci.,   July, 

1866. 

h 

Oy. 

15  m.  M 

L    Simple. 

Resection. 

N.U. 

Gott.      Am.  Jour. 
Med.  Sri.,  Jan., 
1870 

Im. 

18  y. 

-     M 

R    Simple. 

Refractured   twice. 
Humerus  removed 
by    absorption. 
Boston  Med.  and 
Surg.  Jour.,  Oct. 
10,  1872. 

Im. 

i 

40  y. 

3  m.M 

-    Simple. 

" 

N.U 

Resection  and  union 
Mid.    Tnnfs   nnd 
Gnz.,    June    22, 

Im. 

1872. 

PROGNOSIS  IN  FRACTURES. 


425 


TABLE   II.  — FRACTURES   OF   THE   HUMERUS  (Continued). 
Above  Base  of  Condyles.     {Lower  Third.') 


i> 

^ 

Result. 

g 

o 

■7. 

•6 

to 

B 

."S 

'" 

o  ^ 

a 

S 

*^.2 

a   • 

l.i 

o 

5  = 
2§ 

Treatment. 

o 
-a 

0 

a 

o  a 
^  a 
a  t, 
3  o 

Remarks. 

Is 

k 

< 

S  5 

M 

a 

D 

J3 

CM 

24 

55  V. 

2v. 

Simple. 

Lateral  splints. 

U. 

_ 

- 

Fragilitas  ossium. 

P. 

25 

3y. 

3  m. 

K 

R 

Simple. 

— 

U. 

- 

- 

—              — 

P. 

26 

4v. 

20  y. 

M 

- 

Simple. 

— 

u. 

- 

- 

—              — 

P. 

27 

18  y. 

- 

M 

- 

Simple. 

Starch   &   paste- 
board splints. 

u. 

30  d. 

iin. 

~              ~ 

Im. 

28 

32  V. 

15  V. 

M 

R 

Simple. 

— 

u. 

- 

- 

Slight  anchylosis. 

im. 

29 

40  y. 

4y. 

M 

- 

Simp.  & 
oblique. 

Lateral  splints. 

u. 

40  d. 

- 

Elbow  stiff  a  long 
time. 

Im. 

30 

7y. 

15  y. 

iM 

L 

Simple. 

Lateral  splints. 

u. 

- 

iin. 

Arm  hent,  weak, 
somewhat  wasted. 

Im. 

31 

30  y. 

1  m. 

M 

L 

Simp.  & 
oblique. 

Lateral  splints. 

u. 

30  d. 

liin- 

— 

Im. 

32 

3Jy. 

2  m. 

M 

R 

Coniuii- 
nuted. 

Long  gutta   per. 
splint,    sling, 
&c. 

u. 

P. 

33 

30  y. 

6  m. 

M 

L 

Oomp'd. 

Angular  splint. 

N.  U. 

~ 

Jin. 

UnsucceFslul  attempt 
to  unite  bone  by 
operation. 

Im. 

34 

25  y. 

2y. 

M 

R 

Comp'd, 
commi- 
nuted & 
complic. 

u. 

Iin. 

Unreduced  disloca- 
tion of  shoulder. 

Im. 

a 

26y. 

5y. 

M 

L 

Comp'd. 

— 

u. 

- 

- 

Case  j  frict.,   R.   & 
U.,  mid.,  iin 

im. 

b 

8y. 

~ 

M 

"" 

Comp'd. 

Amputation. 

~ 

~ 

" 

Packard.   Am  Jour. 
Med.    ScL,    Jan., 
1871. 

c 

11  y. 

3y. 

M 

R 

Comp'd. 

Pasteboard. 

u. 

2  m. 

Motion  in  joint   im- 
proved,  large  cal- 
lus remains.      Al- 
drich,  Gilson,  111. 

Im. 

Base  of  the 

Con 

dyles 

85 

6y. 

3y. 

M 

R 

Simple 
oblique. 

Felt  and  paste. 

V. 

11  d. 

- 

-              - 

P. 

86 

4y. 

3  m. 

M 

R 

Simple 
oblique. 

— 

V. 

28  d. 

- 

Partial  anchylosis. 

Im. 

37 

6v. 

- 

M 

R 

Simple. 

— 

V. 

- 

- 

—              — 

- 

38 

60  y. 

7  m. 

M 

R 

Simple. 

— 

V. 

- 

iin. 

Upper  frag,    behind 
lower,  -^ncliolj'sis. 

Im. 

39 

9y. 

2  m. 

M 

_ 

Simple. 

— 

V. 

- 

- 

—              — 

Im. 

40 

8y. 

ly. 

M 

L 

Simple 
oblique. 

Right-angled 
splint. 

V. 

' 

Iin. 

Great    deformity, 
paralysis  of   arm, 
prosecution  failed. 

Im. 

41 

4y. 

23  y. 

M 

L 

Simple. 

~ 

V. 

" 

Deformity,   pain, 
numbness,  &c., 
after  23  vears. 

Im. 

42 

2y. 

3y. 

F 

L 

Comp'd 
com'tfd. 

Splints,  &c. 

V. 

6  m. 

iin. 

Anchylosis,  &c. 

Im. 

43 

35  y. 

3y. 

M 

- 

Comp'd 
com 'ted. 

— 

u. 

- 

3  in. 

Partial  anchylosis. 

Im. 

44 

7y. 

17  y. 

M 

- 

Comp"d 
com'ted. 

— 

u. 

- 

- 

—              — 

P. 

a 

12  y. 

2y. 

M 

R 

Simple. 

Anterior   splint, 
forced  flexion. 

u. 

- 

- 

Trace  of  fract.,  use 
good.    Rpoce. 

Im. 

b 

8y. 

- 

M 

- 

Comp'd. 

imputation. 

- 

- 

- 

Packard.   Am.  Jour. 
Med.    Set.,    Jan., 

Im. 

1871. 

426 


CIVIL  MALPRACTICE. 


TABLE   II.  — FRACTURES   OF  THE   HUMERUS  {Continued). 
Internal  Condyle. 


• 

, 

s 

Result. 

§ 

g 

■a 

J3 

43 

.■s 

•s 

"o    . 

o 

•6 

a 

d    . 

•is 

0) 

o 

II 

Treatment. 

O 
T3 

'a 
s 
a 

a  "S 

3  o 

Remarks. 

03    ^ 

a  = 

J3 

S  2 

V 

O  J3 

us   0) 

6 

so" 

a  o 

« 

M 

ja'" 

'S 

J3 

gco 

S  '^ 

^ 

< 

S 

M 

(5 

o 

P 

^ 

<J 

FU 

45 

6y. 

7y. 

Simple 

Paste  bandage 

IF. 

_ 

_ 

—             _ 

p. 

apoph. 

8th  day. 

46 

12  y. 

38  y. 

M 

~ 

Simple. 

— 

U. 

- 

- 

Anchylosis   for   six 
months. 

p. 

*7 

11  y. 

- 

M 

h 

Simple 
apoph. 

Right-angled 
splint. 

V. 

- 

- 

—             — 

p. 

48 

6y. 

3  m. 

M 

~ 

S.  iato 
joint. 

— 

U. 

- 

- 

Anchylosis. 

Im. 

49 

9y. 

16  y. 

M 

R 

Simple. 

U. 

Elbow  stiff  one  year, 
frag,  displaced  for- 
ward, use  of  arm 
now  perfect. 

Im. 

50 

14  y. 

- 

M 

R 

Simple. 



- 

_ 

_ 

—              — 

61 

16  y. 

3  m. 

M 

K 

Simple 
apoph. 

No  splints. 

u. 

Frag,   downw'd    Ij 
in.,  partial  anchy- 
losis, prosecution, 
&c. 

Im. 

62 

11  y- 

ly- 

M 

L 

S.  into 
joint. 

— 

u. 

- 

_ 

Frag,    upw'd  |  in., 
anchylosis. 

Im. 

63 

9y. 

6y. 

M 

L 

Simple 
apoph. 

— 

u. 

- 

- 

Frag,  downw'd  J  in., 
anchylosis,  &c. 

Im. 

64 

8y. 

M 

R 

S.  into 
joint. 

Ang.   splint, 
starch  band- 
age, &c. 

u. 

Anchylosis. 

Im. 

55 

18  y. 

6y. 

M 

R 

Into 
joint 
compl'd. 
with  dis- 
location. 

u. 

Frag,  downw'd  and 
forw'd,   ^  in.,  de- 
formity. 

Im. 

a 

12  y. 

60  y. 

F 

L 

Simple 
apoph. 

Fore-arm  flexed 
to  right-angle 
sling,  &c. 

u. 

" 

" 

Same   patient,   tem- 
porary anchylosis. 

Im. 

b 

13  y. 

59  y. 

F 

R 

Simple 
apoph. 

— 

u. 

~ 

~ 

Condyles  slightly  in- 
wards and  upw'ds. 
Self. 

Anchylosis.      Reece. 

Im. 

e 

16  y. 

15  y. 

V 

L 

Simple. 

Anterior  splint. 

TJ. 

_ 

_ 

Im. 

a 

14  y. 

6y. 

M 

L, 

Simple. 

Anterior  splint. 

U. 

- 

- 

Forced  flexion,  with 
splint.    Reece. 

P. 

< 

7y. 

6y. 

F 

R 

Simple. 

Anterior  splint. 

U. 

~ 

~ 

Forced  flexion,  with 
splint.    Reece. 

P. 

External  Condyle. 


66 

4y. 

ly- 

M. 

L 

S.  into 
joint. 

67 

6y- 

4y. 

M 

L 

S.  into 
joint. 

58 

88  y. 

2  m. 

F 

- 

Simple. 

Gutta   perchs, 
&c. 


Condyle  projects  to 
radial  side  ;  fore- 
arm deflected  to 
ulnar  side ;  very 
little  anchylosis. 

Condyle  projects  to 
radial  side  ;  fore 
arm  deflected  tc 
radial  .  side  ;  an- 
chylosis. 

Condyle  displaced  six 
lines;  anchylosis 


Im. 


PROGNOSIS  IN  FRACTURES. 


427 


TABLE   II.  — FRACTURES   OF   THE   HUMERUS  (Continued). 
External  Condyle  {Continued). 


^ 

i 

6 

.§ 

Result. 

>u 

•E 

•s 

o 

•B 

bo 

1 

II 

a  "o 
•5S 

o 

Treatment. 

'S 

0 
Q 

S    O 

Remarks. 

O  j3 

o 

Si» 

S  o 

tc 

ja"" 

a 

Si 

B<n 

»  •* 

!H 

< 

H 

CO 

M 

L 

u 

P 

^ 

< 

a< 

69 

7y. 

4v. 

Simple. 



U. 

_ 

_ 

Condyle  projects  for- 

Im. 

wards;  fore-arm 

deflected  out- 

wards ;  very  slight 

anchylosis. 

60 

8y. 

2  m. 

M 

L 

Simple. 

Angular  splint. 

U. 

Condyle   projects  to 
radial  fide,  and  a 
little    backwards  : 
anchylosis. 

Im. 

61 

6y- 

20  y. 

Simple. 

u. 

Condyle  projects  to 
radial  side ;  partial 
anchylosis,  &c. 

Im. 

62 

5y. 

8  m. 

M 

Com'ted. 

With  arm  nearly 
straight. 

N.  U. 

■ 

One     fragment    cot 
united  ;  use  of  arm 
perfect. 

Im. 

6S 

11  y. 

ly. 

L 

Comp'd. 
dislocat. 
of radius 
back- 
wards. 

V. 

Motions  of  arm  per- 
fect ;    but    radius 
remains  unre- 
duced. 

Im. 

a 

9y. 

Sly. 

M 

L 

Compli- 
cated.    . 

No  dressing. 

V. 

- 

- 

Perfect     anchylosis, 
straight. 

Im. 

b 

By. 

4y. 

M 

K 

Simple. 

Pasteboard. 

u. 

- 

- 

Forward       displace- 
ment. 

Im. 

c 

29  y. 

Im. 

F 

Compli- 
cated. 

Anterior,  obtuse- 
angled  splint. 

u. 

Partial     anchylosis, 
Medical       Times. 
April  1, 1871. 

Im. 

Between  the  Condyles. 


64 

3y. 

18  y 

M 

L 

Sunple. 

— 

U. 

- 

- 

Arm  shortened  J  of 
an  inch  ;   internal 
condyle    projects  ; 
partial  anchylo^ig. 

Im. 

65 

10  y. 

7y 

M 

L 

Simple. 

Angular  splint. 

U. 

Condyles  spread,  and 
internal      condyle 
carried  backwards 
and  inwards ;  fore- 
arm  deflected  in- 
wards. 

Im. 

66 

44  y. 

6y. 

F 

R 

Com'ted. 

Angular  &  gutta 
percha  splints, 
&c. 

u. 

" 

' 

Slight  anchylosis, 
&c. 

Im. 

67 

36  y. 

12y. 

M 

L 

Comp. 
commin. 

u. 

~ 

~ 

Partial  anchylosis, 
&c. 

Im. 

428  CIVIL  MALPRACTICE. 

TABLE  III.  — EADIUS. 

Fracture  of  Neck  and  Head. 

Prof.  Hamilton  describes  five  cabinet  specimens.  Two  of 
the  neck  and  three  commencing  at  radial  side  of  the  bones 
and  terminating  in  the  joint. 

1.  Belonged  to  the  late  Dr.  Robert  Watts,  of  New  York. 
"  Same  specimen  to  which  Dr.  Parker  has  referred  in  a  note 
to  S.  Cooper's  Surgery  (4th  Am.  ed.)  vol.  ii.  p.  334." 
Fracture  transverse  \  of  an  inch  above  bicipital  tuberosity. 
Dr.  Hamilton's  conclusion  is  "  that  this  is  not  a  fracture,  the 
result  of  any  external  or  sudden  violence,  occurring  in  a  bone 
previously  sound  ;  but  that  it  was  a  case  of  ulcerative  disease 
of  the  elbow-joint,  accompanied  with  inflammation  and  con- 
sequent hypertrophy  of  the  bones,  and  also  with  caries,  and 
resulting  in  a  fracture  or  disruption  of  the  bone  through  the 
neck." 

2.  Specimen  in  Collection  of  Dr.  T.  D.  Miitter,  of  Phila- 
delphia. Fracture  "  seems  to  have  passed  through  the  neck 
of  left  radius,  just  at  upper  extremity  of  the  bicipital  pro- 
tuberance. Union,  with  deformity,  has  resulted.  Articulat- 
ing facet  on  head  of  radius  is  tilted  backwards,  so  as  no 
longer  to  be  in  contact  with  the  humerus.  Anterior  edge  of 
head  of  radius  rests  permanently  against  the  articulating 
surface  of  the  humerus."  New  articulating  surfaces  have 
formed  where  head  of  radius  and  edge  of  head  are  in  con- 
tact with  humerus  and  ulna. 

Fracture  of  Head  extending  into  the  Joint. 

1.  "  Adult.  Oblique  fracture  extending  into  the  joint. 
Complicated  with  fracture  of  styloid  process  of  the  ulna." 
H.  H.  Smith,  M.  D.,  Philadelphia. 

2.  Adult.  United  by  bone.  H.  J.  Bigelow,  M.  D.,  Bos- 
ton. 

3.  Adult.  Broken  almost  perpendicularly  into  the  joint. 
Not  united.     Charles  Gibson,  M.  D.,  Richmond,  Va. 


PROGNOSIS  IN  FRACTURES. 


429 


TABLE  IV.  — FRACTURES  OF  THE  RADIUS. 


Upper  Third.     (Neck.) 

— 

, 

» 

o 

Result. 

• 

.t; 

iS 

o    . 

o 

a 

13 

to 

a 

a  ■ 

.s'S 

o 

Theatmest. 

o 
■a 

□ 
a 

3   O 

REM.iRKS. 

"k 

S  o 

>i 

M 

?^ 

'5 

J3 

o  jq 

55 

< 

H 

R 

o 

P 

<1 

ai 

1 

11  V. 

1  y. 

Simple. 

Fore-arm  bent  at 

U. 

_ 

_ 

Slight  anchylosis 

Im. 

right  angles  until 

and  forced  pronation 

28th  day  ;  then 

of  hand. 

straightened  out. 

2 

8y. 

10  w. 

M 

L 

Com  pi 'd 

with 

fract. 

of  cou- 

dyl. 

Compli- 

Did   not  employ 
surgeon  until  af- 
ter 5  weeks. 

u. 

Anchylosis  ;    hand 
pronated. 

Im. 

3 

25  y. 

6  m. 

AT 

_ 



u. 

_ 

_ 

Anchylosis,  and  loss 

Im. 

cated 

of  both   pronation 

with  dis 

and  supination. 

location 

of  ulna. 

Shaft.     {Middle  Third.) 


i 

21  y. 

50  y. 

M 

- 

Simple. 

U. 

~ 

"" 

Perfect  in   every  re- 
spect except   that 
pronation  and  su- 
pination    were     a 
little  restricted. 

P. 

5 

38  y. 

6  m. 

M 

- 

Simple: 

Palmar  &  dorsal 
splints. 

XJ. 

- 

- 

Slight  forward  bend 
of  fragments. 

Im. 

a 

56  y. 

18  m. 

M 

R 

Simple. 

Two    wood 
splints. 

U. 

6w. 

None. 

No  deformity.  Ham- 
ilton, Galesburg. 

P. 

b 

10  y. 

8y. 

M 

R 

Simple. 

Two    wood 
splints. 

-  TJ. 

4  w. 

None. 

Arm  as  good  as  be- 
fore.    Wm.   Ham- 
ilton. 

No  deformity.    Wm. 

P 

r. 

,SSt. 

2y. 

M 

R 

Simple. 

Two    wood 

XJ. 

5w. 

None. 

P. 

splints. 

HaniiHon. 

d 

9y. 

5y. 

M 

R 

Simple. 

Two    wood 
splints. 

U., 

4w. 

None. 

No  deformity.     Wm. 
Hamilton. 

P 

Shaft. 

(Lower 

77iird,  above  Point  of 

Colles'  Fracture.) 

6 

16  y. 

6y. 

M 

_ 

Simple. 



U. 

_ 

_ 

— 

P. 

7 

12  y. 

10  y. 

M 

L 

Simple. 

— 

U. 

- 

~ 

Frag,    bent   slightly 
towards  ulna. 

P. 

8 

39  V. 

8v. 

M 

_ 

Pimple. 

— 

U. 

- 

- 

-— 

P. 

9 

15  y. 

3  m. 

M 

- 

Simple. 

— 

U. 

- 

- 

— 

P. 

10 

30  y. 

4  w. 

M 

R 

Simple. 

— 

u. 

- 

- 

— 

Im. 

a 

8y. 

3y. 

M 

R 

Simple. 

Pistol  splint. 

u. 

4  w. 

None. 

Partial  loss  of  rotary 
motion.       Hamil- 
ton, Galesburg, III. 

Im. 

b 

20  y. 

2y. 

M 

R 

Simple. 

Pistol  splint. 

TJ. 

4  w. 

None. 

No  deformity.  Ham- 
ilton, Gale.*b"g,  111. 

P. 

c 

13  y. 

6y. 

M 

L 

Simple 

Pistol  splint. 

u. 

4w. 

None. 

Incomplete  fracture. 
Arm  straightened, 
making      fracture 
complete. 

P. 

rf 

lOy. 

50  y. 

M 

R 

Simple. 

Two  splints. 

IJ. 

Im. 

- 

Surgeon  unknown. 

P. 

e 

9y. 

4  m. 

M 

L 

Simple. 

Pistol  splint. 

u. 

Im. 

- 

Green  stick  fracture. 
Self 

P. 

f 

15  y. 

ly. 

51 

L 

Simple. 

Hamilton's 
splints. 

u. 

Im. 

- 

Fell     from     top     of 
freight  car.    Self. 

P. 

g 

15  y. 

3y. 

M 

- 

Simple. 

Pistol  splint. 

u. 

- 

- 

— 

P. 

430 


CIVIL  MALPEACTICE. 


TABLE  IV.  — FEACTURES   OF   THE   EADIUS  [Continued). 
Shaft.    (Lower  Third,  above  Point  of  Collei  Fracture.^  (  Continued^ 


1    • 

. 

Result. 

o 

S 

■a 

5 

_^ 

,ja 

a. 

■^ 

a 

■^ 

.« 

*s 

o 

0? 

V.  n 

M 

s  \ 

?rr; 

sa 

Treatment. 

u 

°a 

iJ  ^^ 

.b'y 

^ 

Is 

£3 

"^r 

Remakes. 

•-    ^ 

d 

to" 

ag 

y. 

fo 

11 

'3 

a 
1 

o  o 

O  J3 

S3 

^ 

H 

CO 

L 

o 

& 

<! 

A 

h 

40  y. 

10  y. 

F 

Simple. 

Pasteboard  a  day 

u. 

_ 

_ 

Fracture  doubtful. 

P. 

or  two. 

\ 

10  y. 

ly. 

M 

R 

Simple. 

Pistol  splint. 

u. 

- 

- 

Green  stick.  Fract. 
complete. 

p. 

] 

16  y. 

4y. 

M 

R 

Simple. 

Two  straight 

splints. 

u. 

- 

- 

Very  slight  radial  in- 
cliaation. 

p. 

h 

13  y. 

50  y. 

M 

L 

Simple. 

Two  straight 
splints. 

u. 

Grfat    deformity. 
Radial  inclination. 
Dislocat.    head  of 
ulna. 

Im. 

I 

fiv. 

5v. 

M 

L 

Simple. 

Pistol  splint. 

TT. 

- 

- 

— 

p. 

m 

58  y. 

ly. 

F 

R 

Simple. 

Straight  splints. 

u. 

Im. 

Radial  inclination  of 
hand.  Ulnar  in- 
clination at  seat  of 
fracture. 

Im. 

Shaft.     (Loiver   Third,  near  Union  of  Epiphysis  with  Diaphysis. 
Oolles'  Fracture.) 


11 

22  y. 

3m. 

ML 

Simple, 

lower 

frag.  dis. 

forward. 

Straight  splints. 

U. 

- 

- 

Arm    straight     but 
wrist  stiff. 

p. 

12 

14  y. 

24  V. 

M- 

Simple. 

— 

TT. 

- 

- 

—            — 

P. 

VA 

15  V. 

25  y. 

M  L 

Simple. 

— 

U. 

- 

- 

—           — 

P. 

14 

43  V. 

3m. 

F  - 

Simple. 

Straight  splints. 

U. 

- 

- 

—           — 

P. 

15 

88  y. 

6w. 

V  I 

Simple. 

Smith's     curved 
splint. 

U. 

- 

- 

—            — 

P. 

Ifi 

40  y. 

5  w. 

MI 

.    Simple. 

Curved  splint. 

U. 

36  d. 

- 

—           — 

P. 

17 

.35  y. 

6w. 

M  L 

Simple. 

Straight  splint. 

u. 

19  d. 

Some    swelling    and 
stiffness      remain- 
ing.  No  ensheath- 
ing  callus  at  any 
period. 

P. 

18 

37  V. 

18  d. 

M- 

Simple. 

Straight  splint. 

u. 

18  d. 

- 

—            — 

P. 

19 

60  y. 

F  B 

L    Simple. 

Curved  splint  one 
week ;        after 
this      straight 
splint. 

u. 

25  d. 

P. 

2(1 

17  T. 

6  m. 

M- 

Simple. 

— 

IT. 

- 

—           — 

Im. 

21 

25  y. 

5y. 

F   I 

Simple. 

Four    narrow 

splints. 

U. 

- 

- 

Radial     inclination ; 
joint  stiff,  &c. 

Im. 

22 

25  y. 

ly. 

F  I 

I    Simple. 

Straight     splint, 
but    hand 
pressed  over  to 
ulna  side. 

u. 

Radial     inclination  ; 
otherwise  perfect. 

Im. 

23 

45  y. 

5  m. 

M  I 

J    Simple. 

Straight  splints. 

u. 

- 

- 

Radial     inclination ; 
some  stiffness. 

Im. 

24 

36  y. 

ly. 

M  I 

i    Simple. 

Curve  splint  one 
week ;        after 
this  no  splint. 

u. 

5w. 

Erysipelas ;    stiffness 
of  wrist   and  fin- 
gers ;    bone 
straight. 

Im. 

25 

60  y. 

6w. 

F  1 

J    Simple. 

Curved  splints. 

u. 

- 

- 

Hand  falls  to  radial 
side  and  back. 

Im. 

26 

56  y. 

2y. 

F  I 

J    Simple. 

Pasteboard 
splints. 

u. 

- 

- 

Hand  to  radial  side  ; 
fingers  stiff. 

Im. 

27 

10  y. 

lay. 

M  I 

J    Simple. 

— 

u. 

- 

lin. 

Ulna  displaced  down- 
wards. 

Im. 

PEOGNOSIS  IN  FRACTURES. 


431 


TABLE  IV.  —  FRACTURES   OF   THE  RADIUS  (Continued). 
Shaft.     (Lower  Third,  near  Union  of  Epiphysis  with  Diaphysis.) 

(  Continued.) 


i 

i 

«■ 

1 

Result. 

o 

0    . 

■4^ 
g         . 

to   tH 

i 

"3 

If 

Treatment. 

1 
8 

i 

a 

a 
oa 

P  o 

Remarks. 

i 

ii 

„  3 

%  3 

s 

S3  S 

S 

o.a 

« «, 

6 

cJj« 

§  " 

>< 

to 

.a* 

'a 

g 

BM 

o  (^ 

» 

■< 

H 

M 

15 

L 

o 

P 

^ 

■< 

^ 

28 

67  y. 

3  m. 

Simple. 

Curved  splints. 

U. 

_ 

_ 



Im. 

29 

51  y. 

ly. 

F 

R 

Simple. 

— 

u. 

- 

- 

Lower    frag,     back- 
wards :  joint  stiff. 

Im. 

30 

26  y. 

4y. 

F 

L 

Simple. 

— 

V. 

- 

- 

Hand  falls  to  radial 
side. 

Im. 

31 

48  y. 

5w. 

E 

L 

Simple. 

Straight  splints. 

V. 

32  d. 

- 

Hand  inclines  to  ra- 
dial side. 

Im. 

32 

48  y. 

3m. 

F 

L 

Simple. 

Curved  and 
straight  splint. 

u. 

26  d. 

- 

Ulna  projects  ;  slight 
stiffness. 

Im. 

33 

52  y. 

3y. 

F 

Simple. 

TJ. 

Hand  to  radial  side 
and      backwarks ; 
fingers  contracted, 
&c. 

Im. 

34 

8y. 

ly- 

M 

- 

Simple. 

— 

v. 

- 

- 

Hand  inclines  to  ra- 
dial side. 

Im. 

35 

29  y. 

- 

F 

- 

Simple. 

— 

V. 

- 

- 

Hand  inclines  to  ra- 
dial side. 

Im. 

86 

56  y. 

5y. 

F 

R 

Simple. 

Straight    splints, 
ten  weeks. 

V. 

Hand  to  radial  side  ; 
wiist  and    fingers 
stiff;     arm     very 
weak,  &c. 

Im. 

a 

50  y. 

2y. 

F 

L 

Simple. 

Pistol  splints. 

V. 

- 

- 

Deformity;  not  per- 
fect use. 

Im. 

b 

52  y. 

ly. 

F 

R 

Simpfe. 

Pasteboard 

splints. 

u. 

- 

- 

Deformity,  imperfect 
use  of  hand. 

Im. 

c 

18  y. 

9  m. 

M 

[i 

Simple. 

Moore's  dressing. 

u. 

- 

- 

Good  use  of  hand.' 

P. 

d 

18  y. 

9m. 

F 

R 

Simple. 

No  dressing. 

u. 

Supposed  to  be  dis- 
location.   Cases  a, 
b,  c,  and  d.  Reece, 
Abingdon,  111. 

Im. 

e 

56  y. 

7m. 

M 

R 

Simple. 

Pistol  splint. 

u. 

- 

- 

Imperfect  use  of  arm. 
Purdum. 

Im. 

f 

eoy. 

6y. 

F 

R 

Simple. 

No  dressing. 

u. 

- 

- 

Very  imperfect.  Pur- 
dum. 

Im. 

e 

48  y. 

5y. 

F 

R 

Simple. 

Pistol  splint. 

u. 

5w. 

None. 

Wm.  Hamilton, 
Galesburg. 

P. 

h 

29  y. 

4y. 

F 

R 

Simple. 

Pistol  splint. 

u. 

6w. 

None. 

Considerable  deform, 
and  loss  of  funct. 

Im. 

t 

6y. 

3y. 

M 

R 

Simple. 

Pistol  splint. 

u. 

5w. 

None. 

h,  and  i.    Wm.  Ham- 
ilton. 

P. 

i 

34  y. 

4y. 

M 

R 

Simple. 

Pistol  splint. 

u. 

5w. 

None. 

Slijrht    ant.    projec- 
tion.    Hamilton. 

Im. 

k 

57  y. 

3y. 

F 

R 

Simple. 

No  dressing. 

" 

" 

" 

Supposed    disloca- 
tion.   Hand   to 
radial  side. 

Im. 

I 

26  y. 

7y. 

M 

L 

Simple. 

Straight  splints. 

V. 

- 

- 

Great  deformity. 

Im. 

m 

60  y. 

4  m. 

F 

R 

Simple. 

Straight  splints. 

u. 

Im. 

~ 

Considerable  deform- 
ity. 

Im. 

n 

53  y. 

2y. 

F 

L 

Simple. 

Pistol  splint. 

u. 

20  d. 

- 

Head  of  ulna  prom- 
inent. 

Im. 

0 

31  y. 

15  y. 

M 

L 

Simple. 

Pasteboard 
splints. 

u. 

Im. 

- 

Hand  to  radial  side, 
ulna  projects. 

Im. 

P 

58  y. 

4y- 

P 

R 

Simple. 

Straight  splints. 

u. 

6  w. 

Hand  and  wrist  back- 
ward,   ulna    pro- 
jects. 

Im> 

? 

61  y. 

5y. 

F 

R 

Simple. 

Two  straight 
splints. 

u. 

Im. 

- 

Hand   backwards, 
ulna  projects. 

Im. 

r 

63  y. 

9y. 

M 

R 

Simple. 

Pistol  eplint. 

V. 

Im 

~ 

Head  of  ulna  prom- 
inent. 

Im. 

432 


CIVIL  MALPEACTICE. 


TABLE   IV.  — FRACTUKES   OF   THE  RADIUS  (Continued). 
Shaft.     {Lower  Third,  near  Union  of  Epiphysis  with  Diaphysis.) 

(  Contimied^ 


— 

o 
C    . 

1" 

M 
M 

M 
M 

M 

F 

F 

M 

M 

1 

R 

L 

R 
L 

L 

R 

R 

R 

L 

o 

i| 

Treatment. 

Result. 

o 
o 

"S 

1 

i 

'3 

3 
g 

ti 

u-   ° 

o  a 

3   O 
-< 

Remarks. 

a 

Is 

J 
t 

37 

38 

V 

« 

z 

30  y. 
30  y. 

13  y. 

38  y. 

13  y. 

72  y. 
10  y. 

10  y. 

46  d. 
46  d. 

5  in. 
2in. 

3  m. 

2y. 

ly. 

Simple. 
Simple. 

Simple 
Simple. 

Simple. 

Simple. 

Simple. 

Simple. 

Simple. 

Bond's  splint. 
Bond's  splint. 

Straight  splint. 
Straight  splint 
after  third  day. 

Straight  splints. 

Pasteboard 
splints. 

Two  straight 
splints. 

Two  pistol 

splints. 

Two  pistol 
splints. 

U. 

u. 

u. 

u. 

u. 

IT. 

u. 
u. 

u. 

Im. 
Im. 

- 

Barton's  fracture. 

Barton's    fracture. 
Fract.  patella. 

Barton's  fracture.  [?] 

Ulna  projects  ;  joint 
stiff;  fragments  in 
perfect  line. 

Fisher.      Chicago 
Me'/.    Jour.  1867, 
p.  72. 

Hand  to  radial  side  ; 
head  of  ulna  pro- 
jects. 

Same  as  above,  with 
marked     swelling 
on  back  of  hand. 

Smith.  MfrJ.  Kecoril, 
vol.    Tii.,     p.  58, 
for  this  and  next 
case. 

P. 
Im. 

P. 
P. 

P. 

Im. 

Im. 

P. 

P. 

It  "will  be  observed  in  fractures  in  the  lower  third  of  the 
radius,  especially  within  an  inch  or  an  inch  and  a  half  of  the 
joint,  how  frequently  the  head  of  the  ulna  projects,  seemingly 
as  if  it  were  dislocated.  Professor  Moore,  of  Rochester,  N.  Y., 
claims  that  it  is  dislocated  in  most  of  these  fractures,  and  that 
it  must  be  replaced  before  the  fracture  is  adjusted.^  The 
slight  radial  inclination  that  generally  follows  this  fracture 
is  sufficient  to  give  considerable  prominence  to  the  head  of 
the  ulna,  and  especially  after  union  has  taken  place,  and  the 
swelling  has  subsided,  this  prominence  is  marked,  often  to 
such  an  extent  as  to  lead  patients  to  suppose  they  have 
suffered  a  dislocation  of  the  wrist  rather  than  a  fracture  of 
the  radius.  If  the  fracture  of  the  radius  is  very  oblique  there 
will  be  more  or  less  shortening,  in  many  cases,  in  which  con- 
dition, the  head  of  the  ulna  will  be  carried  downward  and 
from  the  radial  inclination  of  the  hand,  somewhat  outward. 

*  He  says:  "It  is  altogether  probable  that  fracture  of  the  radiiis  may  occur 
with  which  there  is  no  complication  of  ulnar  luxation.  In  these  cases  there 
would  be  but  little  deformity,  and  crepitus  would  undoubtedly  be  a  matter  of 
easy  determination."    Med.  Record,  vol.  v.  p.  50. 


PROGNOSIS  IN  FRACTURES.  433 

ULNA. 

Fractures  of  Olecranon  and  Coronoid  Processes. 

The  frequency  of  fractures  of  the  olecranon  and  the  possi- 
bility of  fractures  of  the  coronoid  process  of  the  ulna  renders 
a  short  introduction  to  the  Table  of  Fractures  of  Ulna  ap- 
propriate. 

In  respect  to  fractures  of  the  olecranon,  they  are  quite  apt 
to  be  complicated  with  other  injuries,  inasmuch  as  the  force 
required  to  produce  the  fracture  is  severe.  Case  a.  of  Table, 
history  of  which  given  in  Chapter  on  Diagnosis,  was  a  case 
of  this  kind. 

Case  h.  No  dressing.  Fore-arm  flexed  to  right  angle  and 
supported  in  a  sling.  The  fragments  are  now,  after  three 
years,  united  by  ligament  about  -J-  of  an  inch  apart.  Fore- 
arm can  be  extended  about  45°. 

This  case  is  a  fine  example  of  the  result  of  sprains  and 
fractures  about  the  wrist-joint,  in  persons  of  a  rheumatic  di- 
athesis. Five  years  previous  to  fracturing  olecranon,  he 
attempted  to  move  a  heavy  stump  with  the  hand  of  same 
arm,  spraining  the  ligamentous  tissues  in  and  about  the 
wrist.  The  hand  became  instantly  powerless  from  pain, 
and  now,  eight  years  subsequently,  the  fingers  are  distorted 
by  contraction  of  the  tendons  supplying  them,  the  hand  be- 
ing entirely  useless  for  any  function  whatever. 

Case  c.  Fell  a  distance  of  eight  feet  striking  upon  elbow, 
fracturing  olecranon  process  througli  its  base.  Dr.  King,  of 
Bradford  County,  Penn.,  dressed  the  arm  upon  a  Rose  splint 
at  an  angle  of  about  60°. 

Twenty-four  years  after  I  find  the  process  has  united  by 
a  very  short  ligament.  The  head  of  the  radius  is  evidently 
dislocated  forwards,  so  that  flexion  of  the  fore-arm  is  ab- 
ruptly arrested  at  a  right  angle.  Hand  prone,  but  can  be 
rotated  by  voluntary  effort  so  that  thumb  points  upward. 
Extension  cannot  be  carried  to  more  than  60°. 

28 


434  CIVIL   MALPRACTICE. 

Fracture  of  the  coronoid  process  is  of  extremely  rare  oc- 
currence. It  will  scarcely  happen  without  other  injuries. 
That  consecutive  dislocation  is  of  frequent  occurrence  is  very 
true,  but  whether  to  ascribe  it  to  this  accident  I  am  uncertain. 
Of  the  ten  or  twelve  reported  cases,  most  or  all  of  them  are 
unsatisfactory,  and  the  Pathological  Museums  of  the  world 
throw  but  little  more  Hght  upon  the  subject.  Most  reported 
cases  were  those  of  children,  but  it  must  be  remembered  that 
the  coronoid  process  is  an  apophysis  and  not  an  epiphysis. 
Prof.  J.  C.  Hughes,  of  Iowa,  is  the  only  surgeon  whom  I  have 
found  who  admits  fracture  of  the  process  to  be  of  frequent 
occurrence.  He  says  (  Vide  Trans.  Am.  Med.  Soc.  1873)  : 
"  A  posterior  dislocation  at  the  elbow  is  very  rare  when  un- 
connected with  fracture  of  the  coronoid  process." 

When  we  consider  that  an  injury  about  the  elbow  may 
be  a  fracture  of :  (1.)  the  external  condyle,  (2.)  internal  con- 
dyle, (3.)  olecranon,  (4.)  coronoid  process,  (5.)  head  of  ra- 
dius (?),  or  two  or  more  of  these  fractures,  or  a  dislocation  of 
the  radius,  forwards  or  backwards,  or  outwards,  or  a  disloca- 
tion of  the  uhia  backwards,  or  of  the  radius  and  ulna,  both, 
backwards,  or  outwards,  or  inwards,  or  forwards,  or  a  combi- 
nation of  fracture  and  dislocation,  and  these  associated  with 
immediate  and  great  swelling,  it  will  be  seen  how  great  the 
diagnosis,  treatment,  and  prognosis  must  necessarily  be. 


PROGNOSIS  IN  ERACTUEES. 


435 


TABLE  v.  — FRACTURES   OF   THE   ULNA. 
Olecranon  Process.     (  Upper  Third.) 


— 

^ 

Result. 

o 

S 

^ 

.a 

a  . 

.4^ 

11 

Treatment. 

o 

0 

Pi 
O 

13 

i 

1 

a 

Remarks. 

hi 

H- ( 
U 

o  — 

?n" 

a^ 

X 

bC 

a 

a 

3  " 

S" 

z, 

< 

H 

cc 

R 

o 

P 

P 

<! 

1 

hiy. 

1  Y. 

M 

Simple. 



U. 

Liff. 

Jin. 

— 

p. 

2 

18  y. 

9y. 

M 

R 

Simple. 

Straight  splint. 

U. 

Lig. 

i" 

Could  not  straighten 
the   arm   quite  as 
well  as  before. 

p. 

3 

14  y. 

69  y. 

11 

" 

Simple. 

u. 

Bone. 

" 

Could  not  straighten 
arm  completely  nor 
supine  it  freely. 

Im. 

4 

14  y. 

Im. 

M 

- 

Simple. 

Straight   gutta- 
percha. 

u. 

Bone. 

- 

United  in  22  days. 

P. 

5 

15  y. 

6  m. 

M 

Compli- 
cated 

with 
dislo- 
cated 
radius. 

u. 

Lig. 

Forearm   remains  at 
an    angle    of    45° 
with  the  arm. 

Im. 

a 

25  y. 

2y. 

M 

L 

Compli- 
cated. 

Straight  splint. 

u. 

Bone. 

- 

Anchylosis  in  nearly 
straight  position. 

Im. 

h 

59  y. 

3v. 

M 

R 

Simple. 

Sling,  no  splints. 

u. 

Lig. 

4  in. 

Extends  arm  to  45° 

Im. 

c 

43_y. 

24  y. 

M 

R 

Compli- 
cated. 

Rose's  splint. 

u. 

Lig. 

Great         deformity  ; 
head  of  radius  dis- 
located ;       flexion 
abruptly    arrested 
at     right    angles  ; 
rotation     of     arm 
lost ;     cannot    ex- 
tend    arm      more 
than  f. 

Im. 

Shaft 

.     (  Upper  Third  below  Goronoid  Process.) 

6 

18  V. 

Iv. 

M 

Simple. 

TJ. 

_ 

_ 

. 

P. 

1 

46  y. 

9w. 

F 

Simple. 

V. 

Slight  forward  bend 
at  seat  of  friicture  ; 
lower  end  of  ulna 
projecting  slightly 
to  ulnar  side. 

P. 

8 

32  y. 

3  w. 

F 

L 

Simple. 

2  wide  splints. 

V. 

Bend  at  seat  of  frac- 
ture ;  lower  end  of 
ulna  projecting  to 
ulnar  .«ide ;  arm  as 
useful  as  before. 

P. 

9 

7y. 

F 

- 

Comp'd. 

2  straight  splints. 

V. 

- 

- 

—            — 

P. 

10 

4y. 

F 

Simple, 
compl'd 
with  dis- 
location. 

Ang.  splints,  &c. 

u. 

The  friigments  con- 
tinued to  press  for- 
wards ;     functions 
of  arm  perfect. 

P. 

11 

17  y. 

M 

L 

Conip'd, 
compli- 
cated 
with  dis- 
location. 

Rest,  and  cooling 
lotions. 

u. 

J  in.i 

Head    of   radius   re- 
mains     di.«.      for- 
wards ;    fragments 
of  ulna  bent  for- 
wards     and     out- 
wards towards  the 
radius;  flexion  and 
extension     imper- 
fect,     &c.       Arm 
quite  useful. 

Im. 

1  Shortened. 


436 


CIVIL  MALPRACTICE. 


TABLE  v.  — FRACTURES   OF   THE   ULNA  (Continued). 
Shaft.     (Middle  Third.) 


. 

01 

R 

ESULT. 

o 

-a 

a 

g   . 

o 

o     . 

■si 

Teeatment. 

c 

•a 

"3 

3 

a 

a 

ll 

Remarks. 

a 

o  % 

s,s 

c  5 

A 

iC 

S'S 

a 

A 

S  -5 

fs* 

S5 

<i 

H 

-/:• 

R 

o 

P 

i^ 

<  "" 

a, 

12 

39  V. 

8  m. 

Simple. 

Straight  splints. 

U. 

4w. 

_ 

Very     slight     beud 

P. 

backwards. 

13 

30  y. 

10  y. 

'- 

^ 

Simple. 

" 

u. 

' 

Hand  inclines  to  pro- 
nation; slijjhtbend 
at  seat  of  fracture. 

P. 

14 

3y. 

6  w. 

M 

Compl'd 

withdis- 

loc.  of 

radius. 

Splints. 

u. 

P. 

15 

9y. 

6w. 

M 

Compl'd 

withdis- 

loc.  of 

radius. 

Angular   splints, 
&c. 

u. 

Ulna  slightly  bent  at 
seat  of  fracture. 

P. 

16 

9y. 

5y. 

M 

Compl'd 

with  dis- 

loc.  of 

radius. 

Splints. 

u. 

The  fracture  was  also 
compound. 

P. 

a 

11  y- 

6y. 

M 

11 

Simple. 

Pasteboard 

sulints. 

u. 

~ 

Pnrdum,      Hermon, 

111. 

" 

b 

22  y. 

6  m. 

M 

Ti. 

Simple.  2  wood  splints. 

u. 

5w. 

None. 

Hamilton,         Gales- 

P. 

burg,  III. 

c 

25  y. 

10  m. 

M 

L 

Simple. 

No  dressing. 

u. 

- 

iin. 

Ensheathing     callus 
marked. 

Im. 

d 

19  y. 

ly. 

\\ 

R 

Simple. 

2  board  splints. 

u. 

4  w. 

Lower  end  bends  for- 
ward and   inward. 
Large  callus.    Aid- 
rich,  GilsoD,  111. 

Im. 

Shaft.     {Lo 

wer  ' 

Third 

-) 

25  y. 

26  y. 
39  y. 
21  y. 

25  y. 


26  y. 


56  V, 


2  m. 

3  m. 

ly- 

2y. 


3  m. 


8y. 


Simple. 
Simple. 
Simple. 
Simple. 


Commi- 
nuted, 

compl'd 

with  dis 
loc.  of 
ri'dius 

forward; 

Compl'd 

with  dis- 
loc.  of 
head  of 
radius 

forwards 
Simple. 


2  broad  splints. 
2  broad  splints. 


Gibson's  splints. 


Roller  bandage. 


1  in. 


3  w. 


Before  dressing,  hand 
was  prone. 

Before  dressing,  hand 
was  prone. 

Some  displacement 
of  fragments. 

Cannot  supine  hand 
perfectly  ;  lower 
end  of  ulna  pro 
jects  to  ulnar  side, 
&c. 

Radius  remains  dislo 
cated;  ulna  much 
bent  forwards  at 
seat  of  fracture 


Radius  remains  dislo 
catnd  ;  ulna  bent 
at  sent  of  fracture  ; 
all  tlio  motions  of 
arm  nearly  com- 
plete. 

Head  of  ulna  quite 
prominent ;  tunc 
tion  unimpaired. 


PROGNOSIS  IN  FRACTURES. 


437 


TABLE  VI.  —  FRACTURES   OF   THE   RADIUS   AND   ULNA. 
Upper  Third. 


i 

(1) 

Result. 

-n 

■*i» 

^f 

vl 

O 

■6 

o  bi 

a 

c 

^^ 

B-a 

"7 

Treatment. 

u 

a 

^  a 

o  *1 

^  K 

o 

% 

c3 

Kemabes. 

s^ 

o 

?nS 

Eg 

•A 

fclJ 

^i 

'3 

S3 

S^ 

V  p. 

iz; 

< 

H 

■Ji\A 

o 

P 

<5 

PM 

1 

16  y. 

M 

- 

Simple. 

- 

u. 

- 

- 

—        — 

p. 

3fiddle  Third. 


2 

25  y. 

25  y. 

M 

Simple. 

U. 

P. 

3 

iiy. 

5w. 

M 

_ 

Simple. 

— 

U. 

5w. 

- 

Ensheathing  callus. 

P. 

4 

11  y- 

11  y. 

M 

- 

Simple. 

— 

U. 

- 

- 

—           — 

P. 

5 

10  y. 

30  y. 

.M 

R 

Simple. 



U. 

_ 

- 

—           — 

P. 

6 

9y. 

10  y. 

F 

- 

Simple. 

— 

U. 

_ 

- 

—            — 

P. 

7 

2y. 

2  m. 

M 

R 

Simple. 

— 

U. 

- 

- 

—            — 

P. 

8 

16  y. 

3y. 

M 

R 

Simple. 

— 

u. 

- 

- 

—            — 

P. 

9 

26  y. 

7y. 

M 

L 

Simple. 

2    broad  splints, 
felt,  &c. 

U.and 
D.  U. 

2  and 
4  m. 

" 

Ulna    united    in    8 
weeks  and  the  ra- 
dius in  16. 

P. 

10 

_ 

40  y. 

M 

_ 

Simple. 



U. 

_ 

_ 

—            — 

Im. 

11 

80  y. 

4  m. 

M 

R 

Simple. 

2    broad  splints, 
paste,  &c. 

U.and 
D.  U. 

7-"-. 

Ulna    united    in    7 
weeks,  but  radius 
has  not  in  4  m. 

Im. 

12 

4  m. 

M 

L 

Simple. 

Carved  splints. 

U.and 
D.U. 

1  in. 

Lower  Irair.  bent  to 
ulnar   side    4    m. 
after         fracture  ; 
ulna  not  united. 

Im. 

13 

9y. 

2  m. 

M 

R 

Simple. 

2  bioad  splints.. 

N.  U. 

_ 

- 

Arm  sloughed  off. 

Im. 

14 

22  y. 

6  m. 

F 

L 

Comp'd. 

D.U. 

4  m. 

Union  delayel  4  m. 
Arm  still  swollen, 
&c. 

Im. 

15 

35  y. 

2  m. 

M 

- 

Com- 
minuted 

2   broad  splints, 
&e. 

U. 

- 

Jin. 

Slight  deformity. 

Im. 

a 

14  y. 

- 

M 

R 

Simple. 

2  straight  splints. 

U. 

- 

_ 

Use    of    arm    good. 
Purdum. 

P. 

b 

13  y. 

5y. 

F 

R 

Simple. 

Straight  splints. 

U. 

- 

- 

Use    of    arm    good. 
Purdum. 

P. 

c 

48  y. 

6y. 

U 

R 

Simple. 

2  wood  splints. 

U. 

6w. 

^in. 

Rotation  partly  lost. 
Wm.  Hiimilton. 

Im. 

d 

14  y. 

6y. 

F 

L 

Simple. 

2  short,  straight 
splints. 

U. 

6w. 

En.sheatLiing    callus. 
Arm  bent  to  radial 
side. 

Im. 

e 

13  y. 

2y. 

M 

R 

Simple. 

Pasteb'd  splints. 

U. 

_ 

- 

Reece,  Abingdon,  III. 

P. 

f 

7y. 

ly. 

M 

R 

Simple. 

I'astcb'd  splints. 

U. 

- 

- 

"                 " 

P. 

g 

5y. 

2y. 

M 

R 

Simple. 

Pasteb'd  splints. 

U. 

- 

- 

a                    11 

P. 

h 

7y. 

2  m. 

.M 

L 

Simple, 

Pasteb'd  splints. 

U. 

- 

- 

"                    " 

P. 

i 

10  y. 

ly- 

M 

L 

Simple. 

Pasteboard. 

U. 

- 

- 

"                     " 

P. 

J 

25  y. 

•5y. 

M 

L 

Comp'd. 

u. 

Reece.    R.  R.  injury  ; 
broken  at   several 
points  ;    one    year 
before  use  ot  limb. 

Im. 

k 

46  y. 

2y. 

M 

L 

Simple. 

2  board  splints. 

u. 

4  w. 

iin. 

Limb    U'^eful.      Aid- 
rich,  Gilson,  111. 

Im. 

438 


CIVIL  MALPRACTICE. 


TABLE  VI. 


•FRACTURES   OF   THE  RADIUS   AND   ULNA 
(Continued). 

Lower  Third. 


^ 

^ 

a 

o 

Result. 

o 

o 

-a 

^ 

."S 

.rt 

^ 

"s 

o 

•a 

(«-•  bb 

B 

a> 

*!) 

°  » 

a 

-^ 

°.2 

M 

0    . 

a  "O 

^ 

»2 

Treatment. 

o 

'a 
a 

.u  '3 

S-- 

•i£ 

O 

fl 

1 

Remarks. 

II 

6 

a§ 

B  g 

X     U3 

o3  <S 

.a 

a 

a-s 

ss. 

Iz; 

<i 

H          c 

I- 

o 

C3 

<i 

cu 

16 

3y. 

7y.  -' 

Partial. 

No  splints. 

u. 

_ 

_ 

—          — 

p. 

17 

18  m. 

ly.  1 

"  R 

Partial. 

Splints,  &c.,  3  or 

4  days. 
Single  splint. 

u. 

- 

- 

—          — 

p. 

18 

5y- 

IL 

Partial. 

u. 

_ 

_ 

Frags,  at  first  salient 

p. 

backwards. 

19 

6y. 

4w.   1 

"  R 

Partial. 

Single  splint. 

u. 

~ 

~ 

Salient     backwards 
probably  epiphys- 
eal. 

p. 

20 

8y. 

2  m.    I 

HL 

Part.  & 
complete 

Single  splint. 

u. 

21  d. 

- 

Salient  forwards. 

p. 

21 

2y. 

4  m.    J 

(I- 

Part.  & 
complete 

No  splints. 

u. 

Ulna    broken    1    in. 
from  its  lower  end, 
and  radius  bent  al 
junction  of  epiphy- 
sis with  diaphysis. 

p. 

22 

14  y. 

-     J 

1- 

Part.  & 
complete 

2  broad  splints. 

u. 

- 

- 

Radius    broken   and 
ulna  bent. 

p. 

23 

11  y. 

14  y.  5 

IR 

Simple. 

— 

u. 

- 

- 

—            — 

p. 

24 

8y. 

ly.    ^ 

IR 

Simple. 

Paste  bandage. 

u. 

- 

- 

—            — 

p. 

25 

12  y. 

6y.    5 

I- 

Simple. 

— 

u. 

- 

- 

—           — 

p. 

26 

7y. 

3  m.    -1 

I- 

Simple. 

2  splints. 

u. 

Probably  at  junction 
of  epiphysis   with 
diaphysis, and  per- 
haps not  complete ; 
frags,     bent     for- 
wards. 

p. 

27 

10  y. 

18  y.  J 

I- 

Simple. 

Splints. 

u. 

- 

- 

Deformity  remaining 
4  years. 

p. 

28 

14  y. 

3  m.   J 

I- 

Simple. 

Splints    after     4 
■weeks. 

V. 

- 

- 

Deformed  as  in  fract. 
of  radius. 

Im. 

29 

10  y. 

13  y.  a 

I- 

Simple. 

— 

V. 

- 

- 

—           — 

P. 

30 

30  y. 

6w.   P 

- 

Simple. 

1  straight  splint 
after  2d  week. 

V. 

- 

- 

—           — 

P. 

31 

23  y. 

6w.    J 

I- 

Compl'd 

with 
fracture 
of  hu- 
merus. 

Gutta-percha  and 
wooden  splints. 

u. 

P. 

32 

9y. 

ly.    1 

I- 

Simple. 

Refract,    after   2 
w.,  and  splints 
applied. 

2  wide  splints. 

u. 

~ 

~ 

~           ~ 

P. 

33 

16  y. 

10  y.  IV 

IR 

Simple. 

V. 

_ 

_ 

Ulna  projects. 

P. 

34 

12  y. 

ly.    I 

R 

Comp'd. 

3  splints. 

V. 

- 

- 

—            — 

P. 

35 

32  y. 

8  m.    IV 

IR 

Simple. 

— 

u. 

- 

- 

Accidentally  refract, 
after  4  m. 

P. 

36 

10  y. 

3  m.   a 

IR 

Comp'd. 

L    gutta-percha 
splint. 

u. 

- 

- 

—           — 

Im. 

37 

18  y. 

14  y.  ft 

IL 

Compl'd 

— 

u. 

- 

iin. 

—            — 

Im. 

38 

36  y. 

7  w.    jV 

1- 

Comp'd 
jommin. 

Gutta-percha, 
&c. 

u. 

- 

Lower  frags,  inclined 
to  ulnar  side. 

Im. 

39 

35  y. 

3y.    iV 

IR 

Comp'd. 

2  broad  splints. 

U.and 
D.U. 

Ulna    united    soon ; 
radius    not    until 
9th  week  ;  arm  in- 
clined to  ulnar  side 
from  seat  of  fract- 
ure downwards. 

Im. 

40 

38  y. 

2y.    IV 

[L 

Comp'd. 

U.and 

N.  U. 

Jlua  united  soon,  but 
the  rad.  delayed  2 
years  ;     operation, 
prosecution,     and 
never  came  to  trial. 

Im. 

PROGNOSIS   IN  FRACTURES. 


439 


TABLE   VI.  — FRACTURES   OF   THE  RADIUS   AND   ULNA 
{Continued). 

Lower  Third.    {Continued.) 


o 

a   . 

< 

ai 

1 

o 

"3 

o   . 

Treatment. 

Result. 

i 

o 

a 

o 

■a 

'a 

■a 
S 

'3 

3 

a 

*i  a 

p   o 

St; 

o  o 

Remarks. 

a 

o  ^ 

£  p. 

a 

b 
c 

d 
e 

f 
S 

65  y. 

12  y. 
6y. 

14  y. 

68  y. 

9y. 

13  y. 

4y. 

3y. 

6y. 

4y. 

2  m. 

3  m. 

F 

F 
M 

M 
F 

M 
M 

R 

L 

R 
L 

R 
R 

Impact- 
ed. 

Partial. 
Simple. 

Simple. 
Compli- 
cated. 

Simple. 

Compli- 
cated. 

Days'   splint   for 
2  weeks,   then 
starch. 

Plaster  of  Paris. 
Pasteb'd  splints. 

2  straight  splints. 
No  dressing. 

Hamilton's  spit. 
Straight  splints. 

U. 
U. 

u. 

u. 
u. 

u. 

u. 

3w. 
Im. 

- 

Partial  anchylosis  of 
■wrist ;  patient  not 
satisfied  -with  re- 
sult. Reeder,  La- 
con,  111. 

Reeder. 

Purdum,  Hermon, 
111. 

Ulna  projects.    Self. 

Inclination  hand  to 
radial  side  and 
backward.  Head 
of  ulna  dislocated. 

Partial.  Arm 
straightened  ;  rad. 
broke  completely. 
Ulna  fract.  a  little 
below  radius,  and 
when  arm  was 
straight'd,  sprang 
away  from  radius. 
Slf. 

Fisher,  Chicago  Med. 
Jour.,  1867,  p.  72. 
Partial  anchylosis. 

Im. 

P. 
P. 

Im. 
Im. 

P. 

Im. 

FEMUR. 

Professor  Hamilton,  in  his  introduction  to  fractures  of  the 
femur  (Report  on  Deformities  after  Fractures,  vol.  10,  Trans- 
actions, Am.  Med.  Association,  p.  242),  remarks :  "  It  is 
possible  that  wrong  inferences  may  be  drawn  from  the 
Tables,  by  those  who  do  not  observe  particularly  what  is  im- 
plied by  the  terras  '  perfect '  and  '  imperfect.'  I  have  es- 
tablished for.  myself  a  standard  by  which  to  regulate  the  ap- 
plication of  these  terms,  and  which  can  be  easily  understood 
by  a  reference  to  the  full  record  of  the  cases ;  but  the  stand- 
ard is  arbitrary,  and  probably  would  not  be  regarded  as  just 
by  all  surgeons.  Indeed,  it  has  frequently  happened  to  me 
to  examine  broken  limbs  which  have  been  carefully  meas- 
ured by  other  surgeons  and  found  shortened  one  quarter  or 


440  CIVIL  MALPRACTICE. 

one  half,  or  even  three  quarters  of  an  inch,  but  which  they 
have  chosen  to  call  '  perfect.'  With  such  a  standard  as 
these  gentlemen  adopt,  the  proportion  of  perfect  cases  in  my 
Tables  would  have  been  very  greatly  increased,  and  perhaps 
art  would  have  been  less  scandalized,  but  I  know  that  truth 
would  have  been  less  faithfully  vindicated." 

It  too  frequently  happens  that  if  the  patient  does  not  limp, 
his  surgeon  looks  upon  the  result  as  being  "  perfect,"  not 
recognizing  that  a  slight  inclination  of  the  pelvis  compen- 
sates for  the  shortening,  and  so  obviates  limping. 

The  conditions  of  a  faithful  measurement  of  the  lower  ex- 
tremity are  these  :  "  The  patient  should  repose  upon  his  back, 
upon  an  even  surface,  with  the  lower  extremities  as  nearly 
as  possible  in  the  line  with  the  axis  of  the  body,  the  two 
wings  of  the  pelvis  being  in  the  same  (horizontal)  line.  A 
flexible,  but  firm,  graduated  tape  is  to  be  preferred  to  the 
steel  tape  measure.  The  foot  being  steadied  by  an  assistant, 
the  surgeon  should  put  his  thumb  nail  against  the  line  where 
it  joins  the  ring,  and  push  his  nail  into  the  skin  just  helow 
the  anterior  superior  spinous  process  of  the  ilium,  pressing 
firmly  up  and  back,  the  flat  surface  of  the  nail  resting  upon 

the  skin Below  the  measurement  may  be  made  from 

either  malleolus,  but  the  outer  has  the  most  defined  extremity, 
and  is  generally  to  be  preferred."  Hamilton,  Fract.  and 
Dis.  5tli  ed.  418.  The  swelling  about  the  ankle  may  render 
these  points  below  rather  undefined,  and  care  must  be  used 
in  selecting  the  precise  point.  Fractures  implicating  both 
thigh  and  leg  require  a  new  point  of  departure  in  the  meas- 
urement of  the  leg,  which  is  generally  the  angle  between 
the  superior  and  external  lateral  border  of  patella.  Error 
may  in  some  cases  arise,  from  the  malleoli  of  the  opposite 
limbs  being  of  unequal  length,  or  from  one  limb  being  con- 
genitally  shorter  than  the  other.  Measurement  is  seldom  re- 
sorted to  in  fractures  of  upper  extremity  on  account  of  the 
difficulty  of  obtaining  fixed  points  of  departure. 


PROGNOSIS   IN  FRACTURES. 


441 


TABLE   VII.  — FRACTURES   OF   THE   FEMUR. 
Nech.     {Upper  Third.) 




i 

o 

o 

2      5 

^  si 

Treatment. 

Result. 

o 

'3 

O    to 

a 

il 

K     i^ 

2    |2 

tii 

a 

p  a 

Remarks. 

6 

4)    S 
bij  " 

.1"  i 

to      -.a 

"a 

S 

^ 

2  ° 

9-2 

f  * 

» 

< 

H          t^l 

:4      O 

t> 

<  " 

S4 

1 

52  y. 

3in.   M 

-     Simple 
prob- 
ably 
within 
capsule. 

Straight     splints 
three  w.,   then 
crutches. 

Jin. 

Im. 

2 

77  y. 

6  m.    M 

R  S.  with- 
in cap- 
sule. 

Vo    dressing    for 
two  weeks,  and 
then     straight 
splints. 

U.  by 
Lig. 

3  in. 

Fall  on  trochanter; 
did  not  shorten  at 
first ;    no  eversion 
or     inversion     of 
toes  ;  no  crepitus. 

Im. 

3 

78  y. 

36  h.?  M 

-    Simple. 

Double    inclined 
plane   at  first, 
then     straight 
splints. 

lin. 

Fall  on  trochanter; 
eversion    of   toes ; 
no  crepitus. 

Im. 

4 

73  y. 

29(1.    F 

R,  S.  with- 
out cap- 
sule. 

No  splint. 

Jin. 

Fall  on  trochanter ; 
eversion  ;  uo  crep- 
itus ;  u  cable  to  lie 
down      for     three 
months ;  unable  to 
walk  for  one  year. 

Im. 

5 

66  y. 

Im.    F 

R  S.  with- 
in cap- 
sule. 

Double    inclined 
plane. 

~ 

"■ 

lin. 

No      shortening     at 
first ;  no  crepitus  ; 
eversion. 

Im. 

6 

50  y. 

5y.    F 

R   Simple. 

No  treatment  ex- 
cept     confine- 
ment to  bed. 

IJin. 

Fall  on  trochanter ; 
eversion  ;   bed-rid- 
den     after       five 
years. 

Fall  on  trochanter ; 

Im. 

7 

84  y. 

Sin.   F 

L  S.  prob- 

Confinement    in 

Bone. 

_ 

Jin. 

Im. 

ably 

bed. 

eversion    at  first ; 

without 

unable     to     walk 

capsule. 

without    crutches 
after  eight  mos. 

8 

65  y. 

6  m.    M 

L    Simple. 

Gibson's  straight 
splint. 

U. 

- 

fin. 

Blow  on  groin. 

tm. 

9 

79  y. 

ly.    F 

[j    Simple. 

Double     inclined 
plane    of    pil- 
lows. 

Eversion ;   one  year 
in  bed. 

Im. 

10 

Sly. 

36  y.    M 

R    Simple. 

Straight,     single 
inchned  plane, 
with  extension. 

U. 

" 

13  in. 

Fall    on     feet  ;     on 
crutches     in     ten 
weeks ;  slight  halt. 

Im. 

11 

40  y. 

14  h.?  M 

U    Simple. 

Straight  splint. 

- 

- 

Jin. 

Crepitus  ;  eversion. 

Im. 

12 

51  y. 

9  y.     F 

L  i?.  prob- 
ably 
within 
capsule. 

Double    inclined 
plane. 

lin. 

Kail  on  trochanter; 
eversion  ;  no  crep- 
itus ;  no  shorten- 
ing at  first. 

Im. 

13 

67  y. 

1  y.    F 

R   Simple. 

Flex.    pes.     OTer 
pillows,  &c. 

" 

" 

lin. 

Fall  on   trochanter; 
eversion  ;  no  crep- 
itus. 

Im. 

14 

39  y. 

6y.    >1 

\'  3.  prob- 
ably 
without 
capsule. 

Straight  splint. 

N.  U. 

2  in. 

Blow  on  trochanter  j 
eversion. 

Im. 

1£ 

67  y. 

3y.     M 

fj  3.  within 
capsule. 

No  splints. 

N.  U. 

- 

IJin. 

Fall  on  feet. 

Im. 

le 

Sly. 

7y.    F 

R    Simple. 

No  splints. 

- 

- 

fin. 

.Vot  able  to  walk  un- 
der six  months. 

Im. 

!■ 

42  y. 

M 

L  S   with- 
out cap- 
sule. 

Straight     splint 
witlj  extension 
six  weeks. 

U. 

6w. 

Jin. 

Pall  on  trochanter 
no  crepitus ;  ever- 
sion ;    death      on 
46th  day. 

Im. 

442 


CIVIL  MALPKACTICE. 


TABLE   VII.  — FRACTURES   OE   THE   EEMUR  (Continued). 
Neck.     (  Upper  Third.)     ( Continued.) 


o 

o 

3 

o 

Result. 

o 

-d 

O   fcjD 

a 

n 

C 

0)  'O 

o  ■« 

T; 

^  3 

Tbeatment. 

§ 

"a 

*^'s 

o  -g 

6 

•3  s 

■a  » 

a  g 

>i 

o 

he 

'3 

a 

=1 
11 

REMABK8. 

ft 

iz: 

< 

H 

F 

S 

O 

& 

^ 

<'^ 

Cu 

18 

76  y. 

2  m. 

Simple. 

Double    inclined 

_ 

_ 

_ 

Fall  on  hip ;  died  in 

Im. 

plane. 

four  months. 

19 

48  y. 

5y. 

M 

L 

S.  within 
capsule. 

Detention  in  bed 
a  few  days,  then 
walking     with 
crutches. 

IT.  by 
Lig. 

6w. 

IJin. 

Not     shortened     at 
first ;  subsequently 
shortened         and 
eTerted. 

Im. 

20 

84  y. 

5  m. 

F 

L 

S.  with- 
out cap- 
sule. 

In  bed  six  weeks. 

U.  by 
bone. 

6w. 

Jin. 

Slight  cYersion. 

Im. 

21 

54  y. 

8w. 

M 

R 

S.  with- 
out cap- 
sule. 

Straight      splint 
six  weeks. 

U.  by 
bone. 

6w. 

lin. 

~ 

Im. 

22 

23  y. 

2m 

M 

L 

Simple. 

Fall  on  trochanter ; 
no    shortening    of 
limb,     but     frag- 
ment displaced. 

a 

eoy. 

^y■ 

F 

R 

Capsu- 
lar. 
S.  prob- 

No dressing. 

N.  U. 

- 

IJin. 

Reeder.    Lacon,  111. 

Im. 

b 

60  y. 

5y. 

F 

R 

No  dressing. 

N.  U. 

_ 

_ 

Great          deformity 

Im. 

ably 

when     she     bears 

within 

weight  of  body  on 

capsule. 

limb.  Limps  badly. 

c 

25  y. 

_ 

M 

- 

Simple. 

Extension  18  lbs. 

U. 

35  d. 

- 

Co.  Hospital.    Fenn. 

Im. 

d 

54  y. 

— 

F 

S.  with- 
out cap- 
sule. 

~ 

" 

" 

Med.     Times,     Oct. 
15,1870.    Died. 

Im. 

t 

13  y. 

3  m. 

M 

R 

Simple. 

Extension.       No 
splint. 

u. 

- 

- 

Fisher.           Chicago 
Med.  Jour.,  1867. 

- 

f 

65  y. 

5  m. 

F 

Impact- 
ed iatra- 
caps. 

Straight   splints, 
extension    and 
counter-exten- 
sion. 

u. 

7w. 

Died  in  five  months. 
Union  bony.  Pack- 
ard.      Am.  JouT. 
Med.    Sci.,  April, 
1870. 

e 

70  y. 

" 

F 

L 

S.  trans, 
intra- 
caps. 

Died  3d  day. 

Allen.      Am.    Jour. 
M.  iS-.,  July,  1867. 

h 

35  y. 

5  m. 

M 

Compli- 
cated. 

Double  incline. 

u. 

Sin. 

Fracture  of  shaft  and 
comp.  fracture  of 
tibia  and  fibula  of 
same  limb.i 

Im. 

i 

16  y. 

38  y. 

M 

- 

Impact- 
ed. 

— 

u. 

- 

- 

McGraw.    3Ied.  Rec- 
ord, Feb.  1,  1873. 

Im. 

3 

74  y. 

- 

F 

R 

Intra- 
cap. 

No  special. 

- 

- 

- 

Med.    Record,   July 
15,  1873.    Died. 

Im. 

h 

66  y. 

5  m. 

R 

Intra- 
cap.  im- 
pacted. 

Buck's     ap- 
paratus. 

u. 

7w. 

Avi.  Jour.  Med.  Sci., 
April,  1870. 

1  Amputation,  subsequently. 


PROGNOSIS  EST  FRACTURES. 


443 


TABLE  Vn.  — FRACTURES  OF 
JBelow  Trochanter  Major. 


THE   FEMUR  {Continued). 
{Upper  Third.) 


o 

^ 

a;       J 

Result. 

o 

o 

."2       ■" 
su       o 

o 

a 

■a 

O   ii 

a 

a   . 

c -a 

.2       fr-  2 

Treatment. 

o 

'S 

3 

a 

.u'a 

•gg 

li 

°  11 

•a 

Remarks. 

l-g 

o 

a§ 

Sg     X 

.t  1^ 

'3 

J3 

2  ° 
S'S 

Is. 

z. 

< 

B      il 

K       O 

P 

<  " 

Pm 

2£ 

27  y. 

6w.    M 

R    Simple. 

My  own  straigh 

TJ. 

3w. 

|in. 

In  all  other  respects|lm. 

splint. 

perfect. 

24 

7y. 

4w.    F 

-    Simple. 

My  own  straight 
splint,  4  weeks 

U. 

4  w. 

Jin. 

Xearly  perfect. 

Im. 

25 

30  y. 

ly.    M 

R    Simple. 

Gibson's  straight 
splint,  2  weeks 
then       double 
inclined  plane, 
&c. 

U. 

10  w. 

fin. 

Ulceration  on  instep 

Im. 

26 

- 

2y.    M 

R   Simple. 

Double    inclined 
plane. 

U. 

- 

IJin. 

—              — 

Im. 

27 

42  y. 

4y.    M 

-     Simple. 



u. 

- 

fin. 

Slightly  bent. 

Im. 

28 

9y. 

Sly.     11 

R    Simple. 



u. 

- 

IJin. 

Limps  very  little. 

Im. 

29 

55  y. 

6w.    M 

-     Simple. 

Straight  splint. 

u. 

6  w. 

Jin. 

Broken  at  seat  of  old 
fracture. 

Im. 

30 

49  y. 

7w.    31 

-    Simple. 

Double    inclined 
plane. 

u. 

- 

Jin. 

—               — 

Im. 

31 

ly- 

ly.    M 

R    Simple. 

Lateral  splints. 

u. 

None. 

Slight  bend  at  point 
of    fracture,    and 
slight  inversion  of 
toes. 

P. 

32 

40  y. 

M 

R    Simple. 

Straight  splint  18 
days.      Double 
inclined   plane 
16  days. 

u. 

6w. 

Jin. 

Im. 

33 

13  y. 

10  w.    M 

L    Simple. 

Potter's  straight 
splint. 

u. 

- 

lin. 

—              — 

Im. 

34 

5y. 

8w.    M 

L    Simple. 

Straight  splint. 

u. 

4  w. 

|in. 

No  halt. 

Im. 

35 

55  y. 

2  m.   F 

-     Simple. 

Welsh's  splint  as 
a    double     in- 
clined plane  1 
week,  then  as  a 
straight  splint. 

-  u. 

Jin. 

Im. 

36 

47  y. 

2y.    F 

L    Simple. 

Various. 

V. 

- 

lin. 

Bent  forwards  at  seat 
of  fracture. 

Im. 

37 

29  y. 

-       M 

-    Simple. 

Straight  splint. 

V. 

52  d. 

Sin. 

A  refracture  j  slough 
on  heel. 

Im. 

S8 

y- 

12  y.    M 

L  Simple. 

— 

TJ. 

- 

3Jin. 

Fractured  3  times  at 
same  point. 

Im. 

39 

14  y. 

-       M 

L  Compli- 
cated. 

Day's  double  in- 
clined plane. 

N.  U. 

- 

- 

Death  in  4  weeks. 

Im. 

a 

40  y. 

8y.    M 

R  Commi- 
nuted, 

Double    inclined 
plane. 

U. 

10  w. 

liin. 

Fracture  also  in  L.  J. 
Reeder,  Lacon. 

Im. 

b 

63  y. 

6  m.   M 

R  Commi- 
nuted. 

Double     inclined 
plane  2  weeks, 
then  plaster  of 
Pari.s  with   ex- 
tension      and 
weight. 

U. 

lin. 

Fracture     in    L.    J. 
Reeder,  Lacon,  111. 

Im. 

c 

36  y. 

5y.    M 

R    Simple 
oblique. 

Straight  splint  4 
w.  then  starch 
bandage. 

u. 

7  w. 

iin. 

Projects       outward. 
Wm.  Hamilton. 

Im. 

d 

ly- 

4y.    M 

L    Simple. 

Short  splints. 

u. 

5  w. 

Jia. 

Cure  good  but  not  p. 
Wm.   Hamilton. 

Im. 

t 

8y. 

5y.    M 

R    Simple. 

Buck's  extension. 

u. 

- 

^fone. 

Useful  soon  after  re- 
covery.   Reece. 

P. 

f 

6y. 

4y.    M 

R   Simple. 

Buck's  extension. 

u. 

- 

^one. 

Usefulness    soon. 
Reece,  Abingdon. 

P. 

B 

30  y. 

14  y.    M 

R   Simple. 

ijODg  splint. 

V. 

~ 

Jin. 

Up.    frag,    projects. 
Reece. 

[m. 

444 


CIVIL   MALPEACTICE. 


TABLE  VIL— FRACTURES   OF   THE   FEMUR  [Continued). 
Belmo  Trochanter  Major.     (  Upper  Third.)     ( Continued.) 


i 

o 

<o 

Result. 

■a 

.a 

fl   . 

-u 

i^ 

1 

o   . 

Treatment. 

o 
p 

o 

ri 

'a 

O   ho 

c 
*='5 

1 

6 

2 

a  ^ 

fig 

R 

'a 

.a 

2  ° 
6-2 

Remarks. 

r 

A 

36  y. 

6t. 

Simple. 

Double     inclined 

U. 

_ 

3  in. 

Excessiye  deformity. 

Im. 

plane. 

t 

37  y. 

11  m. 

M 

R 

Simple. 

Long    and  short 
splints,      -with 
extension. 

D.U. 

3m. 

2  in. 

Bingham.  Am. Jour. 
Mfcl.    Sci.,  April, 
1869.    Consecutiye 
shortening. 

Im. 

J 

17  y. 

3y. 

M 

R 

Simple. 

1  long,   3    short 

splints. 
1   long,   3    short 

U. 

5w. 

iin. 

Aldrich,  Gilson,  111. 

im. 

k 

12  V. 

ly. 

M 

L 

Simple. 

V. 

i  w. 

*in. 

Aldrich.    Bends  out- 

Im. 

splints. 

ward.  Large  callus. 

I 

88  y. 

4  m. 

JI 

R 

Commi- 

Plaster of  Paris. 

V. 

- 

^-in. 

Gibbes.     Ned.    Rec- 

Im. 

nuted. 

ord,  May  15,1875.  1 

m 

37  y. 

" 

" 

R 

Simple. 

Buck's  apparatus 

V. 

3  m. 

2  in. 

Bingham.      Ain.    J.  Im. 
M.  6-.,  April,  1869. 

Shaft.     (Middle  Third.) 


40 

9y. 

3  m. 

M 

L 

Simple. 

Straight  splint. 

U. 

4  w. 

None. 



P. 

41 

13  y. 

Im. 

M 

- 

Simple. 

Straight  splint. 

u. 

3w. 

None. 

—           — 

P. 

42 

9y. 

ly. 

M 

R 

Simple. 

— 

u. 

- 

None. 

Slightly  bent  out  and 
forwards. 

P. 

43 

3y. 

63  y. 

M 

- 

Simple. 

— 

u. 

- 

None. 

—            — 

P. 

44 

15  y. 

30  y. 

M 

- 

Simple. 

— 

V. 

- 

None. 

—            — 

P. 

45 

3y. 

ly- 

M 

- 

Siaiple. 

Pillows. 

u. 

- 

None. 

—            — 

P. 

46 

5y. 

2y- 

JI 

R 

Simple. 

Straight  splint. 

u. 

- 

- 

—            — 

- 

47 

8y. 

6w. 

F 

R 

Simple. 

Straight  splint. 

u. 

4  w. 

iin. 

—            — 

Im. 

48 

19  y. 

ly- 

M 

L 

Simple. 

J.      F.      I'lagg's 
straight  splint. 

V. 

5  w. 

*in. 

Bent  outwards  at  seat 
of  fracture. 

Im. 

49 

■9y. 

46  d. 

M 

R 

Simple. 

Gibson's  splint. 

u. 

46  d. 

iin. 

—           — 

Im. 

50 

18  y. 

Im. 

M 

L 

Simple. 

Straight  splint. 

u. 

23  d. 

|in. 

—           — 

Im. 

51 

10  y. 

2m. 

il 

- 

Simple. 

aamilton"sst.  sp. 

u. 

Im. 

Jin. 

—           — 

Im. 

52 

12  V. 

5  w. 

M 

L 

Simple. 

Hamilton's  St.  sp. 

u. 

5  w. 

Jin. 

—           — 

Im. 

53 

11  y. 

11  w. 

M 

R 

^imple. 

Straight  splint. 

u. 

- 

iin. 

—           — 

Im. 

64 

6y. 

" 

M 

B 

Simple. 

Gibson  and  then 
Hamilton's   st. 
splint. 

tJ. 

Im. 

iin. 

Slightly     bent     for- 
wards    and     out- 
wards. 

Im. 

55 

22  y. 

2m. 

M 

B 

Simple. 

— 

u. 

- 

2  in. 

Much  bent  outwards 
at  seat  of  fracture. 

Im. 

66 

36  y. 

4m. 

M 

- 

Simple. 

Straight  splint. 

u. 

- 

lin. 

—           — 

Im. 

57 

22  y. 

2  m. 

M 

R 

Simple. 

Flagg's  St.  splint. 

u. 

2m. 

Jin. 

—           — 

Im. 

68 

8y. 

5y. 

M 

L 

Simple. 

Double    incUned 
plane. 

u. 

- 

Jin. 

—           — 

Im. 

59 

5y. 

lid. 

M 

L 

Simple. 

Side  splint  only. 

u. 

lid. 

5  m. 

—           — 

Im. 

60 

40  y. 

2  m. 

M 

1. 

Simple. 

Straigbt  splint. 

u. 

3w. 

Jin. 

—           — 

Im. 

61 

22  y. 

9w. 

JJ 

R 

Simple. 

Straight  splint. 

u. 

- 

Jin. 

—           — 

Im. 

62 

13  y. 

13  y. 

M 

~ 

Simple. 

— 

u. 

- 

liin. 

No     halt  ;       spine 
crooked. 

Im. 

63 

15  y. 

19  y. 

M 

L 

Simple. 



u. 

- 

Jin. 

—           — 

Im. 

64 

16  y. 

25  y. 

M 

L 

Simple. 

— 

u. 

- 

|in. 

So  halt. 

Im. 

66 

30  y. 

5y. 

M 

L 

Simple. 

— 

u. 

- 

liin. 

—           — 

Im. 

66 

25  y. 

17  w. 

M 

I. 

Simple. 

Straight  splint. 

u. 

- 

iiin. 

Upper  frag,  on  inside 
of  lower. 

Im. 

67 

30  y. 

ly. 

M 

L 

Simple. 

Double    inclined 
plane. 

u. 

- 

-|in. 

Some  bent  outward.' 
»t  seat  of  fracture. 

Im. 

68 

7y. 

6w. 

M 

Simple. 

Gibson's  str.  spl. 
2  weeks,   then 
Hamilton's. 

V. 

39  d. 

Jin. 

Im. 

PKOGNOSIS  IN  FRACTURES. 


445 


TABLE  VII.  — FRACTURES   OF   THE   FEMUR  (Continued). 
Shaft.     {Middle  Third.)     {Continued.) 


40  y. 
8y. 

8y. 
14  y. 

22  y. 

23  y. 

23  y. 

4y. 


77  4  y.      o  y 

78  28  y.    12  y. 


4y. 
ly- 

22  y. 
15  w. 

ly. 

7  m. 
7  m. 

5y. 


25  y. 
14  y. 

18  y. 
8y. 
24  y. 
35  y. 

14  y. 

23  y. 
31  y. 

iiy- 
ly- 

55  y. 

50  y. 

10  y. 

24  y. 


60  y 
14  y. 


2  m. 

8y. 

10  w. 
2  m. 
2  m. 
2  m. 

17  y. 

38  y. 

5y. 

ly- 

4y. 

4y. 

ly- 
17  y. 
5y. 


^   3 


Simple. 
Simple. 

Simple. 
Simple. 

Simple. 

Simple. 

Commi- 
nuted. 

Simple. 


Commi- 
nuted. 
Simple. 

Compl'd 
Simple 


ML 
M  R 

>I  R  Conip'd 
M  L  ConipM 
M  L  Oomp"d 
il  R  Comp'd 


Comp'd 

•ommin. 

Comp'd 

comniin. 

Simple 

oblique, 

Gre^n 

stick. 


12  y.     ly. 
5  y. 


ly- 


Simple. 

Simple 
Simple 
Simple. 


.Simple. 
Simple, 
ccimprd 
F  lli  I  Simple 
I     I  oblique. 


Double    inclined 

plane. 
Desault's  straight 

splint. 


Straight  splint. 

Straight  splint 
after  11  week 
llamiltou'sspl. 


Double     inclined 

plane. 
First  double    in 

clined     plane ; 

straight  splints 

after  5  weeks 
Double    inclined 

plane. 


Double    inclined 

plane. 
Straight  splint. 

Straight  splint. 
Side   splints   and 

flexed  position 
Potter's  str.  spl. 
Pott's  method. 
My  own  splint. ' 
Double     inclined 

plane. 
Double    inclined 

plane. 


Straight  splint. 

tr.  spl.    Starch 

bandage  after  3 

weeks. 

Short  splints. 


Buck's  extension 

Buck's  extension 
\jon'i  splint. 
Long  splint. 

Buck's  extension 
Buck's  extension 


Hamilton's      ex- 
tension. 


0. 
D.U. 


U. 
D.U. 


13  w. 


2  m. 


5  w. 


4  w. 


Im. 
32  d 


I'm. 

3  in. 

2  in. 
2  in. 


lin. 
^  in. 

Hin. 

1  in. 
Jin. 

2  in. 

lin. 
liin. 
Jin. 
None. 


Jin. 
None 
J  in. 


iin. 


Bent  forwards  at  seat 

of  fracture. 
Bending  of  limb  from 

non  -  consolidation 

of  callus;  beutout- 

warJs. 
Broken  twice  at  same 

point. 


Refract,  after  4  m., 
and  reunion  after 
40  days  more. 

Bhut  forwards  at  seat 
of  fracture. 

Same  case  as  74. 


At  first  bent  for- 
wards, and  subse- 
quently becoming 
straight. 

Same  case  as  76. 

Mollites         ossium 
both  legs  bent. 

Paralytic  limb  ;  ex- 
ac  t  result  unknown 


Im- 


Im. 


Im. 
Im. 


Gunshot  fracture. 
Bent  forwai-ds  at  seat 

of  fracture. 
Atrophy    of     limb  ; 

sliglit  halt. 
Gunshot  fracture. 

Slight  outw'rd  curve, 
\Vm.  Hamilton. 

Slight  outw'rd  curve, 
U'm.  Hamilton 

Cure  good  but   not 

perfect.  'Wm. 

Hamilton. 
Upper  frags,  projects 

out.     Reece. 
Rcece,  Abingdon, 111. 
Rnece,  Abingdon,  III. 
Difficult      to       use. 

Reece. 
I.imb  straight. 
Disloc.  of  left  knee. 

IJmt)  straight. 
No  deformity. 


Im. 
Im. 
Im. 

Im. 


446 


CIVIL  MALPRACTICE. 


TABLE  VII.  — FRACTURES   OF   THE  FEMUR   (Continued). 
Shaft.     (Middle  Third.)     (Continued.) 


, 

^  ■ 

6 

Result. 

o 

o 

% 

5 

a 

o  m 

B 

a  . 

II 

Teeatmbnt. 

S 

a 

°a 

^P. 

'f  ^ 

o 

a  « 

Remarks. 

1"g 

a  3 

ag 

i< 

.a 

'3 

S'S 

s^ 

Yt 

< 

H 

M 

M 
L 

o 

P 

<  .«- 

Cu 

k 

15  Y- 

2y. 

Simple 

Hamilton's  appa- 

u. 

36  d. 

iin. 

Toes     slightly      in- 

Im. 

oblique. 

ratus. 

verted. 

I 

22  y. 

ly- 

M 

- 

Simple 
oblique. 

Not  known. 

N.U. 

- 

lin. 

M.  and  S.  Reporter, 
vol.  12,  p.  257. 

Im. 

m 

4y. 

- 

M 

L 

Com- 
pound. 

Simple        exten- 
sion. 

U. 

- 

- 

Med.  Record,  Tol.  1, 
p.  239. 

~ 

n 

9y- 

- 

M 

R 

Simple. 

Bucls's  apparatus 

- 

- 

,^in. 

Med.  Record,  vol.  1, 
p.  240. 

Im. 

0 

13  y. 

- 

- 

L 

S.  com- 
plicated. 

— 

u. 

6  w. 

- 

See  case  d,  above 
condyles. 

P. 

P 

22  y. 

M 

R 

Comp'd 
commin. 

Wood's        ham- 
mocli  splint. 

u. 

8w. 

Jin. 

Lancet  and  Observer, 
April,  1874. 

Im. 

Remote  from  Condyles 

.      (Lower  Third.) 

87 

8y. 

2  m.  M 

-   Simple. 

Hamilton's     str. 
splint,  &c. 

u. 

Im. 

None. 

-             - 

P. 

88 

8y. 

ly.    M 

L  Simple. 

Double    inclined 
plane  13  days, 
then      Hamil- 
ton's   straight 
splint. 

u. 

None. 

On    13th    day   limb 
was  shortened  be- 
fore straight  splint 
was  applied. 

P. 

89 

24  y. 

30  y.    M 

R  Simple. 

Double    inclined 
plane. 

u. 

- 

If  in. 

Slight  halt. 

Im. 

90 

42  y. 

6y.    M 

-   Simple. 

— 

u. 

- 

lin. 

—              — 

Im. 

91 

.42  y. 

7w.    M 

-   Simple. 

Straight  splint. 

u. 

- 

A  in. 

—              — 

Im. 

92 

11  y- 

Im.    M 

R  Simple. 

Straight  splint. 

u. 

Im. 

Jin. 

Upper  fragment  on 
outside  of  lower. 

Im. 

93 

27  y. 

2  m.    F 

R  Simple. 

Straight  splint. 

u. 

5w. 

■in. 

—              — 

Im. 

94 

10  y. 

4y.    M 

-   Simple. 

My  own  straight 
splint. 

u. 

Im. 

'::  iu. 

Slight   forward  pro- 
jection at  seat  of 
fract.atendoflm. 

Im. 

95 

20  y. 

3  m.  M 

-  Simple. 

Gibson's  straight 
splint. 

u. 

- 

5  in. 

—              — 

Im. 

96 

25  y. 

6w.    M 

-   Simple. 

Straight  splint. 

u . 

6w. 

^iu. 

Ulcer  on  heel. 

Im. 

97 

23  y. 

11  w.    M 

L  Simple. 

_ 

D.  U. 

11  w. 

Ulcer  on  heel. 

Im. 

98 

30  y. 

2  m.    M 

-   Compli- 
cated. 

My  own  straight 
splint. 

u. 

- 

j"in. 

— 

Im. 

99 

23  y. 

6  m.    M 

L    Com- 
pound. 

Double     inclined 
plane  and  plas- 
ter of  Paris. 

V. 

Sin. 

Refract,  end  of  2  m. ; 
reunited  in  3  w. ; 
toes    everted ;   fis- 
tula ;    unable     to 
walk  after  6  m. 

Im. 

100 

23  y. 

7  m.   M 

R     Com- 
minuted 

See  case  75. 

u. 

- 

2  in. 

See  case  75. 

Im. 

a 

40  y. 

8y.    M 

R     Com- 
minuted 

Double  incline. 

u. 

10 

Uin. 

Reeder.    Lacon,  111. 

Im. 

b 

63  y. 

6m.   M 

R     Com- 
minuted 

Double    inclined 
plane  2  weeks, 
then  plaster. 

Straight    splint  ; 

u. 

~ 

lin. 

Reeder ;  a  &  b  fract. 
in  upper  third. 

Im. 

c 

28  y. 

ly.    M 

L    Simple 

u. 

5w. 

None. 

No  curvature.    Wm. 

P. 

oblique. 

starch  bandage 
after  10  days 

Hamilton. 

ti 

42  y. 

2iy.    F 

L  Simple 
loblique. 

Starch  bandage 

u. 

6w. 

Jin. 

Wm.    Hamilton, 
Galesburg,  111. 

Im. 

PROGNOSIS  IN  FEACTURES. 


447 


TABLE   VII.  — FRACTURES   OF   THE  FEMUR  {Continued). 
Remote  from  Condyles,     {Lower  Third.^     (  Continued.) 


C 

4 

1 

Resclt. 

„■ 

t3 

a 

•" 

"* 

*: 

s 

ng" 

l-H 

a    . 

&  i: 

o 

fe2 
g  2 

Treatment. 

%4 

o 

d 

Remarks. 

o  -g 

a  5 

X 

bO 

^fi 

a 

^ 

a -5 

z 

<s 

H 

M 

L 

o 

0 

<) " 

ft( 

e 

50  V. 

10  m. 

M 

Simple. 

Buck's        exten- 

U. 

6w. 

Jin. 

Ensheathing  callus. 

Im. 

sion,  12  to  16 
pounds. 
Double    inclined 

f 

13  V. 

18  y. 

M 

li 

Simple. 

V. 

6w. 

lin. 

Curved      outwards ; 

Im. 

plane. 

limps. 

ff 

13  y. 

31  V. 

Ml 

R 

Simple. 

Short  splints. 

V. 

2  m. 

Hin. 

No  deformity. 

Im. 

h. 

54  y. 

- 

M 

R 

Compli- 
cated. 

Extension. 

V. 

43  d. 

^in. 

Fenn.  Chicago  Med. 
Jbitr.,  Oct.  1869. 

Im. 

1 

21  y. 

~ 

M 

L 

Compli- 
cated. 

Extension  18  lbs. 

V. 

liin. 

Fracture  of  patella, 
case  6. 

Im. 

Just  above  Condyles  and  Condyles. 

{Lower  Third.) 

101 

4y. 

26  y. 

M 

R 

Simple. 



U. 

_ 

iin. 



Im. 

102 

25  y. 

16  m. 

M 

L 

Simple. 

Long  side  splint 
without  exten- 

U. 

~ 

l^in. 

Up.  frag,  in  front  & 
outside  of  lower. 

Im. 

103 

25  y. 

5  m. 

M 

R 

Simple. 

Straight  splint. 

D.U. 

- 

fin. 

Not   united    after  5 
months. 

Im. 

104 

20  y. 

5y. 

M 

R 

Comp.  & 
commi- 
nuted. 

tr. 

" 

Tin. 

Portions  of  bone  lost 
by  exfoliation. 

Im. 

105 

7y. 

2y. 

M 

R 

Compli- 
cated. 

Double    inclined 
plane. 

u. 

- 

lin. 

Sloughing    of  parts 
of  foot. 

Im. 

a 

47  y. 

18  m. 

M 

L 

Compli- 
cated. 

Forcible  flexion. 

N.  U. 

" 

Necrosis  of  frag,   of 
inner     tuberosity. 
Use  of  joint  good. 

Im. 

b 

18  y. 

6  m. 

M 

Com- 
pound 
commi- 
nuted. 

Inclined  J  plane ; 
apparatus    im- 
mobile. 

D.U. 

6  m. 

Gazette      Htbdom., 
No.  31, 1870.  Half- 
yearly  Abst.  Dec, 
1870. 

c 

26  y. 

4  m. 

M 

R 

Trans- 
verse. 

— 

D.U. 

27  m. 

- 

Half-yearly        Abst. 
July,  1869. 

Im. 

d 

13  y. 

R 

Com- 
pound 
compile. 

Iron  splints. 

U. 

6  w. 

ym. 

Lajicfi,  Oct.  12,1867. 
See  case     o,   mid- 
dle third  shaft  of 
left  femur. 

Im. 

t 

50  y. 

4  m. 

M 

R 

Simple. 

Splints ;       fract. 
box,  &c. 

u. 

" 

' 

Am.  Jour.   M.    Set., 
Oct.,  1866. 

Im. 

448 


CIVIL  MALPEACTICE. 


PATELLA. 

In  fractures  of  the  patella,  as  in  fractures  of  the  olecranon, 
we  may  have  loss  of  function  from  the  muscles  drawing  the 
fragments  apart  instead  of  by  each  other.  Drawn  apart,  it 
is  usual  for  the  fragments  to  unite  by  ligament  rather  than 
by  bone,  hence  the  propriety  of  dressing  these  fractures  with 
the  limb  in  a  straight  position,  thus  keeping  fragments  in  as 
near  apposition  as  possible.  Yet,  when  brought  so  near  to- 
gether that  the  fragments  almost  touch  the  presence  of  fluid 
(synovia)  between  them  in  the  vast  majority  of  cases  pre- 
vents bony  union.  Weakness  and  indeed  considerable  atro- 
phy of  the  quadriceps  extensor  may  follow  the  accident ; 
over  this  the  surgeon,  I  apprehend,  has  no  control.  From 
the  table  it  will  be  seen  how  seldom  union  takes  place  by 
bone.  In  respect  to  the  union  being  bony,  it  is  a  mere  mat- 
ter of  opinion^  in  the  living  subject,  and  will  require,  for  its 
establishment  as  a  fact,  a  post  mortem  examination.  It  may 
sometimes  happen  that  the  effusion  into  the  joint,  from  the 
synovitis  that  follows  the  injury,  may  be  so  great  that  no 
mechanical  contrivance  will  be  able  to  approximate  the  frag- 
ments. Possibly  this  effusion  has  as  much  to  do  with  the 
separation  of  the  fragments  as  the  contraction  of  the  quad- 
riceps extensor  femoris. 


TABLE  VIIL  — FRACTURES  OF  THE  PATELLA. 


o 
a 

CO 

M 

M 

M 

M 
M 
M 

2 
£. 

u 
c 

"5) 

h 

B 

h 

o 

K  t 

S  a 

U 

Treatment. 

Result. 

d 

S5 

o 
a 

u 
o 
■o 
S. 
'a 
P 

s 

a 

a 
a 

Bemares. 

a 

M 

"Co. 

1 

2 

3 
4 
5 
6 

5y. 

20  y. 

36  y. 
25  y. 
56  y. 
33  y. 

6  m. 
6w. 

5  w. 
2y. 

Simple 
oblique. 
S.  traus. 

S.  trail  p. 
S.  trans 
S.  tnins. 
S.  trans. 

Straight  position. 

v.    Cooper's    ap- 
paratus. 
My  own  apparat. 
My  own  apparat. 
Only  bandages. 

U. 

u. 

u. 
u. 

u. 
u. 

6w. 

5  w. 
24  d. 

B. 

Lig. 

Lig. 
Lig. 
I.ig. 
Lig. 

Lig.  J  inch  in  length. 

Lig.  \  incli  in  length. 
Lig.  i  ipch  in  leng'h. 
Lig.  i  inch  in  length. 
Lig.  J  inch  ;  limb  ntit 
so  strong  as  other. 

P. 

Im. 

Im. 
Im. 
Im. 
Im. 

PROGNOSIS   IN  FRACTURES. 


440 


TABLE   VIII.— FRACTURES   OF   THE  PATELLA  {Continued). 


^ 

i> 

^ 

2 

Result. 

o 

c 

•I 

f 

^ 

•^ 

• 

o 

o 

a 

a    . 

= -3 

^ 

S§ 

Teeatmext. 

B 
o 

B 

S^ 

f  S 

K  t- 

o  -^ 

n 

Remarks. 

-"J 

o 

S  3 

.5  " 

« 

.■§; 

J3  ■■" 

■5 

1 

'a 

^ 

<; 

^ 

^^ 

O 

& 

P 

p^ 

7 

30  y. 

4  w. 

3.  trans. 

My  own  apparat. 

U. 

4w. 

Lig. 

Lig.  ^  Inch  in  length. 

Im. 

by  mus- 

cular ac- 

tion. 

8 

40  y. 

9w. 

M 

S.  trans. 
&c. 

V. 

4w. 

Lig. 

Lig.    partially     torn 
at  end  of  4  weeks ; 
much   callus  ;  iig. 
\  inch  in  length. 

Im. 

9 

22  y. 

6w. 

il 

R 

S.  trans. 

My  own  apparat. 

V. 

37  d. 

Lig. 

Lig.  J  in.  in  length. 

Im. 

10 

22  y. 

6w. 

M 

L 

3.  trans. 

My  own  apparat. 

V. 

37  d. 

Lig. 

Lig.  J  in.  in  length. 

Im. 

11 

30  y. 

4  m. 

M 

L 

3.  trans. 

— 

u. 

2  m. 

Lig. 

—              — 

Im. 

11 

30  y. 

2  m. 

il 

L 

S.  trans. 

My  own  apparat. 

TJ. 

6  w. 

Lig. 

This  was  tract,  at  2d 
point,  4  weeks  after 
1st  ;  it   united   by 
lig.  Jin.  in  length. 

Im. 

12 

24  y. 

29  y. 

M 

R 

S.  trans. 

Single      inclined 
plane,        &c., 
continued  four 
months. 

X.U. 

Was  not  able  to  walk 
with  a  cane  under 
18  months ;  frags, 
separated  2i  to  5 
inches,     according 
to  po.sition  of  leg  ; 
walks        tolerably 
well. 

Im. 

13 

25  y. 

5  m. 

M 

L 

Commi- 
nuted, ^ 

compli- 
cated. 

Straight     splint, 
&c. 

u. 

58  d. 

B. 

Main  frag,  separated 
J  an  inch  by  what 
feels     like     bone ; 
small  frag,  loose ; 
knee-joint  stiff. 

Im, 

a 

30  y. 

27  d. 

M 

R 

3.  trans. 

Single      inclined 
plane ;    fig.     8 
bandage. 

,u. 

Pennsylv.    Hospital. 

Agnew,           Med. 

Times,     April    1, 

1871. 
Fract.  of  femur,  case 

Im. 

I 

21  y. 

_ 

M 

L 

Commi- 



V. 

4  w. 

Bone. 

Im. 

nuted. 

i,  lower  third. 

c 

- 

- 

M 

- 

Commi- 
nuted. 

Malgaigne's 
hooks. 

.  u. 

6  w. 

~ 

Med.  Press  §"  Circu- 
lar, Sept.  22, 1869. 

P. 

TABLE  IX.  — FRACTURES    OF   THE   TIBIA. 
Shaft.     (Upper  Third.) 


1 

58  y. 

6w. 

F 

R 

S.  trans- 
ver.se. 

Lateral     splints, 
pillows,  &c. 

U. 

- 

- 

-           - 

P. 

2 

29  y. 

3  m. 

M 

L 

S.  trans- 
verse. 

Lateral  splints. 

U. 

3  m. 

- 

Knee  stiff. 

V{>) 

8 

42  y. 

10  w. 

M 

- 

Simple. 

— 

U. 

_ 

Slight  bend. 

P. 

4 

8y. 

37  y. 

M 

L 

Simple. 

Lateral  splints. 

U. 

- 

—            — 

V. 

29 


450 


CIVIL  MALPRACTICE. 


TABLE  IX.— ERACTURES    OE    THE   TIBIA  {Continued). 
Shaft.      (Upper  Third.)      (Continued.) 


. 

ij 

o 

Result. 

o 

<M 

o 

■3 

o  si 

S 

o 

a-  . 
St 

a," 

X 

i 

S  2 

II 

Treatment. 

o 

■a 

'3 

'3 

s 

a 
.a 

^  '3 

an 

3  ft 

o  2 

Remarks. 

Ss 

•< 

^ 

- 

o 

tJ 

^ 

<1 

CL, 

5 

55  y. 

2v. 

S.  with 



U. 

_ 

i  in.   Slight   bend;    fibula 

Tm. 

dis.  of 

displaced. 

fibula. 

a 

56  y. 

18m. 

M 

It 

S.  trans- 

Starch bandage. 

u. 

2  m. 

None.  2    in.    below   knee  ; 

Im. 

verse. 

still  luiiie.  \Vm. 
Hamilton,  Gales- 
burg,  111. 

b 

18  y. 

4y. 

M 

L 

Simple. 

Starch  bandage. 

TT. 

4  w. 

Jin. 

Bends  outward  at 
point  of  fracture. 
Aiarich,Gilson,Ill. 

Im. 

Shaft.     (Middle 

Third.) 

re 

50  y. 

2  m. 

F 

L 

S.  trans- 
verse. 

starch  bandage. 

U. 

2m. 

- 

-           - 

P. 

7 

46  y. 

10  m. 

SI 

- 

Simple. 

— 

U. 

- 

- 

Slight  forward  bend 
at  seat  of  fracture. 

P. 

8 

11  y. 

6y. 

M 

R 

S.  trans- 
verse. 

Paste  bandage. 

U. 

- 

- 

—           — 

P. 

9 

17  y. 

11  y. 

M 

R 

Simple. 

— 

U. 

- 

- 

—            — 

P. 

10 

SOy. 

4y. 

M 

h 

Simple. 

— 

u. 

- 

- 

—           — 

P. 

11 

24  y. 

SOy. 

M 

- 

Simple. 

Lateral  splints. 

u. 

_ 

_ 

—            — 

P 

12 

ITy. 

4y. 

M 

- 

Simple. 



u. 

_ 

- 

—           — 

H. 

13 

11  y. 

16  y. 

.M 

R 

Simple. 



u. 

- 

- 

—           — 

H 

14 

53  y. 

4y. 

M 

- 

Simple. 

— 

u. 

- 

- 

—           — 

P. 

15 

26  y. 

9y. 

M 

R 

Com- 
pound. 

— 

u. 

- 

- 

Ulcer    over    seat   of 
fracture 

lui 

16 

39  y. 

99  d. 

JI 

R 

Com- 
pound. 

Double     inclined 
plane,  &c. 

u. 

About 
80  d. 

- 

Upper  (rag.  a  little  in 
front  of  lower. 

Im 

17 

^8  p. 

7  m. 

M 

- 

Comp'd 
commin. 

— 

u. 

- 

ym. 

Remove  d  a  loo.«e  frag- 
ment after  7  m. 

Im 

a 

25  iy. 

10  y. 

M 

L 

Simple. 

Short  splints  and 
double  inclined 
plane. 

u. 

- 

Purduni,      Uermon, 
111. 

P. 

b 

lay. 

8y. 

M 

L 

Simple. 

Long  splint. 

u. 

- 

1  in. 

Purdum,      Ilermon, 

111. 
U'ni.        Hamilton, 

Im 

c 

22  y. 

4y. 

M 

R 

Simple. 

Starch  bandage. 

u. 

5  w. 

None. 

P. 

Galesbi.rg,  HI. 

d 

SOy. 

3y. 

M 

L 

Simple. 

Starch  bandage. 

u. 

5w, 

None. 

No  deformity.     ^Vm. 
n.iniilton. 

P. 

e 

22  y. 

8y. 

JI 

R 

Simple. 

Starch  bandage. 

u. 

5w. 

None. 

No  delorniity.    Wm. 
Hamilton. 

P. 

f 

48.  y. 

ly. 

M 

L 

Simple. 

Starch  bandage. 

u. 

5w. 

None. 

No  deformity.     Wm. 
Ilaiiiiltoii. 

P. 

S 

13  y. 

5y. 

M 

R 

Simple. 

Starch  bandage. 

u. 

4  w. 

None. 

No  deformity.     VCva. 
Hamilton. 

P. 

h 

10  y. 

8y. 

M 

L 

Simplp 
oblique. 

Lateral  splints. 

u. 

Im. 

Broken    limb    ^    in. 
lougest.      Spine  of 
tibia  very  round. 

P. 

i 

22  y. 

_ 

M 

R 

Simple, 

Plaster  of  Paris. 

u. 

_ 

- 

Leg  bows  out.    Feun. 

Im. 

i 

26  y! 

3  m. 

M 

L 

Simple. 

Plaster  of  Paris. 

D.U. 

3  m. 

- 

Am.  Jour.  .Med.  &/., 
July,  1867. 

- 

k 

10  y. 

1  m. 

M 

L 

Simple. 

Tin  side  splints. 

u. 

- 

■  in. 

Fi-act.  united. 

Im. 

I 

15  y. 

Im. 

M 

R 

Simple. 

Tin  side  splints. 

u. 

Im. 

;  in. 

Severe  contusion    of 
soft  tissues. 

Im. 

m 

45  y. 

14  w. 

M 

R 

Com- 
p"und. 

— 

N.U. 

- 

- 

Ml-'/.  Tntus,  Oct.  1, 
1870. 

Im 

n 

22  y. 

18  y. 

JI 

11 

3.  trans- 
verse. 

No  dressing. 

u. 

Exuberant  callus  and 
ulcer  after  18  y. 

Im. 

PEOGNOSIS  IN  FRACTURES. 


451 


TABLE  IX.  — FRACTURES    OF    THE    TIBIA  (Continued). 
Above  Malleolus.     (Lower  Third.) 


, 

, 

Result. 

^ 

^ 

y. 

^• 

<« 

a 

On" 

a  . 

P^ 

Treatment. 

-S 

1 

o  ti 
c 

f  •" 

o 

«5 

c  ^ 

Remarks. 

«5 

■^ 

£  '^ 

s 

OJ    ^ 

i 

H 

X 

i5 

.3  ■" 

1^ 

18 

33  V. 

Rv. 

M  11 

Simple. 



U. 

_ 

- 

—          — 

p. 

19 

17  V. 

fiy. 

ML 

Comp'J. 



U. 

- 

- 

Slight  ileformity. 

Im. 

a 

20  V. 

fiv. 

iM  L 

Simple. 

Starch  bandage. 

u. 

5w. 

None. 

Wui.  Hamilton. 

P. 

b 

43  y. 

2y. 

MR 

Simple. 

Starch  bandage. 

u. 

5w. 

None. 

Urn.  Hamilton.  No 
defiirmitv. 

P. 

c 

12  V. 

2Ay. 

M  L 

Simple. 

Starch  bandage. 

u. 

4  w. 

None. 

W'm.  Hamilton.    No 

P. 

deformity. 

d 

28  y. 

5  m. 

F 

R 

Simple. 

N.U. 

Agnew,  M.  4*  S.  Re- 
porter, vol.  12,  p. 
275. 

Im. 

Malleolus.     (Lower  TJiird.) 


10  w. 


MR 


Comp'd 
coniprd. 


Bowea's   splints, 
&c. 


Several  frag,'!,  of  bone 
discharged. 


TABLE   X.  — FRACTURES   OF   THE  FIBULA. 
Shaft.     {Middle  Third.) 


1 

12  y. 

2y. 

M 

L 

S.  with 
disloc.  of 

tibia 
inwards 

- 

U. 

- 

Tibia     slightly     in- 
clined in  ;  and  fib- 
ula   rests    against 
tibia ;  motions  un- 
impaired. ' 

Im. 

2 

20  y. 

5y. 

M 

L 

Com  p. 
with  dis. 

of  libit 
inwards. 

u. 

V. 

8 

14  y. 

28  y. 

M 

L 

Cnmp. 
with  di^. 

of  tibia 
inward.". 

u. 

i». 

a 

22  y. 

9y. 

M 

L 

Simple. 

Straight  splint. 

u. 

- 

~ 

Purdum. 

V. 

Shaft.      {Tjower  Third.) 

40  y. 

6  m. 

M 

L 

Simple. 

57  V. 

4  w. 

M 

- 

Simple. 

31  V. 

4y. 

M 

L 

Simple. 

34  y. 

24  y. 

.M 

L 

Simple. 

26  y. 

9  m. 

M 

It 

Simple. 

25  y. 

6  w. 

M 

L 

Simple. 

60  y. 

2  m. 

F 

L 

S.  with 

dis.  of 

tibia 

inwards. 

20  y. 

4y. 

M 

II 

Simple. 

Dupuytren's  spl. 


Dupuytren's  spl. 
Cold  water  dress. 
Dupuytren's  spl. 


u. 

u. 

_ 

_ 

u. 

_ 

_ 

u. 

_ 

_ 

u. 

_ 

_ 

u. 

_ 

_ 

u. 

~ 

- 

u. 

- 

- 

Foot  inclined  out : 
fibula  falls  against 
tibia ;  motions  of 
juiut  perfect. 


Im. 


452 


CIVIL  MALPKACTICE. 


TABLE  X.  — FRACTURES    OE   THE  FIBULA  [Continued). 
Shaft.     {Lower  Third.')     {CoJitinued.) 


, 

o 

.^3 

«-I 

a  ■ 

■^  ? 

^  S 

6 

»3 

^ 

o 

12 

32  y. 

13 

30  y. 

32  y. 

35  y. 
22  y. 
21  y. 

12  y. 
35  y. 


20  y, 
2y. 

3  m. 


a   41  y, 
45  y, 


60  y. 

30  y. 
50  y. 
70  y. 

35  y. 

35  y. 


i   10  y. 
3   39  y. 


25  y. 


a     o 


5  w. 

20  y. 
8  m. 

10  y. 

6  m. 
5y. 


3y. 

2y. 
2y. 
3y. 

10  y. 

9y- 


L  i  Simple. 
L  S.  dis. 
of  tibia 
inwards. 
S.  dis. 
of  tibia 
inwards. 


Dupuytren's  spl. 


S.  dis. 

of  tibia 
inwards. 

S.  dis. 

of  tibia 
inwards. 

S.  ext. 
mal.  dis. 

of  tibia 
inwards. 

S.  dis. 

of  tibia 
outw. 

S.  dis. 

of  tibia 
forwards 

Simple. 


Dupuytren's  spl. 


12  y. 

20  y. 


n  53  y. 


F  L    Simple. 

M  L  Simple. 
ML;  Simple. 
M'L  I  Simple. 
iI,L    Simple. 

M|L  I  Simple. 

.M:R      Com- 
pound. 


40  y.  F  !r 
19  y.  m;k 


2y. 

2y. 
3  m. 


Im. 


34  y.  4  y. 
24  y.  3y. 
16  y.    5  m. 


JljL 

mIl 


Starch  bandage. 

Dessault's  dress- 
ing. 

Pasteboard. 

\o  dressing. 

Pasteboard. 

Dessault's  dress- 
ing. 

Dessault's  dress- 
ing. 

Dupuytren's. 


Simple.  lOx-bow  splint. 
Simple.  Lateral  splints. 


Simple. 


Simple. 
Simple. 


Simple. 


Simple. 
Simple. 
Simple. 


No  dressing. 

Dupuytren. 

No  dressing  first 
10  w.,  then  Du- 
puytren. 

Fract.  box  and 
Silic.  of  soda. 

Dupuytren's. 
Dupuytren's. 

No  dressing. 


V. 
U. 

V. 

V. 

u. 

u. 
u. 
u. 

V. 
V. 

u. 

u. 
u. 


o  o 

£•5 


Im. 


5w. 
24  d. 


Occasionally  swells.    ]  Im. 

After  2  y.  occasion-  Im. 

ally  swells. 

Tibia  slightly  dis- 
placed in,  and  fib 
ula  falls  against 
tibia. 

light    projection  of 
malleolus  intern. 


Up.  frag,  of  fibula  be 

hind  lower ;  ankle 

stiff,  &c. 
Lower  frag,  of  fibula 

carried  down ; 

slight  projection  of 

mal.  inter. 
Frags,  of  fibula  fall 

against  tibia ;  ankle 

not  stiff. 
Exfoliation  of  feone ; 

ankle  stiff. 


No  deformity.    Wm. 

Hamilton. 
Keece,  Abingdon, 111. 

Reece,  Abingdon,  111. 
Rcece,  Abingdon,  111. 
Reece,  Abingdon,  lU. 
Reece,  Abingdon,  111 

R«ece,  Abingdon,  HI 

Tibia  inclines  in- 
ward ;  exter.  mal 
projects. 

No  trace  of  fracture. 

Enlargement  at  seat 
of  fracture.  An- 
chylosis 10  years. 

Great  deformity  ;  an- 
chylosis. 

No  trace  of  fracture. 

Tibia  badly'  inwards. 
Anch3losis. 

Diastasis  of  malleoli. 

Keen.  Me'l.  Times, 

Tol.  2,  p.  427. 
Aldrich,  Gilson,  HI 
Aldrich,  Gilson,  111 
Talipes  valgus. 


Im. 

Im. 

Im. 

P. 

P. 

P. 
P. 
P. 
P. 


Im. 


PROGNOSIS  IN  FRACTURES. 


463 


TABLE  XL  — FRACTURES   OF   THE   TIBIA   AND   FIBULA. 
Shaft.     ( Upper   Third.) 


o 

^ 

a 

Result. 

o 

'O 

.a 

o 

a 

«!h 

o    . 

o 

a 

a 

i3  —• 

.S 

g£ 

Treatment. 

g 

'3 

°  g 

O  .» 

o 

g  2 

•a 

P  O 

Remarks. 

1?J 

s 

£   3 

i:  ?* 

O    r- 

6 

ic" 

S  5 

i 

tp 

"a 

B« 

s  ■* 

z; 

<! 

H 

CO 

JI 

^ 

o 

P 

<1 

^ 

1 

25  y. 

_ 

Simple; 

Gutta     percha 

U. 

_ 

No. 

—             — 

p. 

frag,  of 

splints. 

tibia 

never 

disp'ced. 

2 

21  y. 

5y. 

M 

- 

Simple. 

— 

u. 

- 

fin. 

—             — 

Im. 

3 

M 

- 

Simple. 

— 

u. 

- 

^in. 

—             — 

Im. 

4 

35  y. 

4  m. 

M 

R 

Simple. 

Lateral   splints, 
&c. 

D.  U. 

119  d. 

|in. 

Slight  forward  pro- 
jection   of    upper 
frag,  of  tibia. 

Im. 

0 

39  y. 

6y. 

M 

R 

Simple. 

U. 

IJln. 

Tibia   bent  back  at 
seat    of   fracture ; 
anchylosis  of  knee 
(partial). 

Im. 

6 

30  y. 

40  d. 

M 

L 

Comp'd. 

Felt   Rplints   and 
double  inclined 
plane. 

u. 

No. 

Result  uncertain. 

7 

25  y. 

5y. 

M 

R 

Simple 
comaii- 
nuted. 

u. 

Same  patient  as  6. 

8 

34  y. 

8y. 

M 

_ 

Comp'd. 

— 

u. 

_ 

|in. 

Tibia  bent  at  seat  of  Im. 

fracture. 

9 

50  y. 

28  m. 

M 

-    Comp'd 
commi- 
nuted. 

Side  splints,  box, 
starch    band- 
age, &c. 

u. 

63  d. 

iin. 

Several  fragments  re- 
moved. 

Im. 

Shaft.     {Middle   Third.) 

in 

38  V. 

26  d. 

Ml 

Simple. 

Paste  bandage. 

U. 

35  d. 

No. 

_ 

P. 

11 

16  y. 

M 

Simple  ; 

frag,  of 

tibia 

never 

disp'ced. 

U. 

No. 

P. 

12 

17  y. 

40  d. 

M 

L. 

S,  ;  ob. 
of  tibia. 

Double    inclined 
plane  ;       paste 
bandage,  &c. 

U. 

40  d. 

No. 

P. 

13 

10  v. 

15  Y. 

M 

L 

Simple. 

— 

U. 

- 

No. 

—              — 

P. 

14 

19  y. 

31 

Simple  ; 
trans, 
tibia. 

Paste  bandage. 

U. 

No. 

P. 

15 

15  y. 

27  d. 

M 

L 

Simple ; 
tibia  ob. 

Gutta    percha  & 
double  inclin'd 
plane. 

u. 

21  d. 

No. 

Straightened  on  21st 
day. 

P. 

16 

20  y. 

2y. 

M 

- 

Simple. 

— 

u. 

22  d. 

No. 

Ankle    occasionally 
painful. 

P. 

17 

Sly. 

6  w. 

M 

R 

Simple ; 

frag,  of 
tibia 

never 
disp'ced. 

Paste      bandage, 
&c. 

u. 

42  d. 

No. 

P. 

18 

70  y. 

4  w. 
and 
5d. 

M 

L 

Simple. 

Side  splints,  &-c. 

u. 

33  d. 

Lower  frag,  of  tibia, 
in  front  of  upper. 

Im 

454 


CIVIL  MALPRACTICE. 


TABLE  XL  — FRACTURES   OF   THE    TIBIA   AND   FIBULA 

(Continued). 

Shaft.     (Middle  Third.)    (Continued.) 


, 

o 

Result. 

i 

o 

;3 

.a 

o 

^^ 

'^ 

c 

o 

•d 

to 

a 

6 

s 

S  3 

S  u 

X 

Eh 
O 

=i  til 

Treatment. 

o 

■3 

"3 

'a 

3 
13 

Si 

°  a 
II 

Remarks. 

u 

If 

£5 

< 

P 

-yj 

M 

'" 

O 

P 

■^, 

ew 

19 

63  y. 

4  m. 

Simple. 



U. 

_ 

No. 

Ulcer  over  point   of 

P(?). 

fracture  4  months 

after. 

20 

SOy. 

5  w. 

M 

L 

Simple  ; 

frag    of 
tibia 

never 
disp'ced. 

U. 

P. 

21 

14  y. 

5  w. 

& 

2d. 

51 

L 

Simple  ; 

tibia 
trans.  ; 

fnig. 

never 
disp'ced. 

Paste  bandage. 

u. 

40  d. 

No. 

P. 

22 

41  y. 

3  m. 

51 

L 

Simple; 

tibia 

Ob.  ; 
fract.  by 
niusc'Iar 
action  ; 

frag. 

never 
disp'ced. 

Copper     splints ; 
Pott's  position. 

u. 

No. 

P. 

23 

38  y. 

8  m. 

M 

Simple. 

Paste     bandage, 
&c. 

u. 

^in. 

Lower  frag,   of  tibia 
in  front  of  upper  ; 
unable     to     walk 
without    crutc-hes 
after  8  months. 

Im. 

'24 

18  y. 

46  d. 

F 

' 

Simple; 

tibia 
oblique. 

Paste     bandage, 
&c. 

u. 

48  d. 

fin. 

Upper  frag,  of  tibia 
in  fiont  of  lower. 

Im. 

25 

25  y. 

11  w. 

M 

Simple; 

tibia 
ob.  with 
concus- 
sion of 

.'pine. 

Side  splints  and 
a  box. 

u. 

lin. 

Im. 

26 

18  y. 

5  m. 

F 

R 

Simple; 

tibia 
oblique. 

Side  splints. 

u. 

lin. 

Upper  frag,  of  tibia 
outside  of  lower ; 
began  to  walk  in  5 
months. 

Im. 

27 

6  w. 

K 

h 

Comp'd. 

Gutta        percha 
side      splints  ; 
pillows. 

u. 

42  d. 

No. 

Fistulous    di.=charge 
after  6  weeks. 

P. 

28 

35  y. 

4  m. 

M 

- 

Comp'd 

— 

u. 

_ 

No. 

—             — 

P. 

29 

65  y. 

47  d. 

F 

L 

Comp'd  ; 
tibia  ob. 

Pott's  method  2 
weeks,        then 
double  inclini'd 
plane ;      gutta 
percha. 

u. 

20  d. 

iin. 

No  deformity. 

Im, 

80 

35  y. 

M 

R 

Comp'd. 
(both 
legs.) 

Double     inclined 
plane. 

D.  U. 

lin. 

Frag,   of  tibia  bent 
forwards ;    slough 
on  lieel  at  end  of 
7  weeks. 

Im. 

31 

25  y. 

12  d. 

M 

L 

Comp'd 
(with 

— 

u. 

- 

- 

—               — 

Im. 

other 

fract.) 

, 

PROGNOSIS  IN  FEACTURES. 


456 


TABLE  XL  —  FRACTURES   OF   THE   TIBIA  AND   FIBULA 

( Continued). 

Shaft.     {Middle   Third.)     {Continued.) 


o 

o 

^ 

«« 

Result. 

o 

•6 

ti 

a 

li 

^1  ^ 

o 

o    . 

Treatment. 

1=: 
u 
o 

t3 

'S 

s 

S 

°  1 

Remarks. 

-si 

c' 

boO 

-   3 

g 

5  £< 

'c 

£3 

s^ 

S  o< 

Si 

■< 

H 

CO 

M 

'"' 

o 

'p 

^ 

< 

2j 

32 

4y. 

23  y. 

Comp'd. 



U. 

_ 

iin. 

Paralysis    of  lower 

Im. 

ext.   produced   by 

healing    ulcer    of 

22  ytar.-',  over  seat 

of  fracture. 

33 

22  y. 

3  m. 

M 

L 

Comp'd ; 

tibia  ob. 
(with 
other 
fnict.) 

U, 

IJin. 

Upper  frag,  of  tibia 
in  front ;  ulcer  on 
heel,  &c. 

Im. 

34 

8y. 

- 

M 

R  Conip'd;  Side  spJints,  pil- 

- 

- 

- 

Died  in  8  months. 

- 

tibia 

low,  cold  water, 

trans. 

etc. 

36 

19  y. 

5  w. 

11 

R 

Commi- 
nuted. 

(both 

tibia  ob. 

Starch  bandage, 
&c. 

u. 

35  d. 

Notcrooked;  wheth- 
er   shortened    or 
not  cannot  deter- 
mine. 

36 

14  y. 

40  y. 

JI 

L 

Comp'd 
commi- 
nuted. 

u. 

No. 

P. 

37 

28  y. 

57  d. 

M 

L 

Comp  d 
commi 
11  u  ted ; 

tibia  ob  . 

Double    inclined 
plane,        &c, : 
paste  bandage, 
after  7  weelcs. 

u. 

56  d. 

i  in. 

Im. 

38 

33  y. 

3y. 

JI 

R 

Comp'd  ; 
tibia 
trans. 

Mayor's  dressing, 
cool  lotions,-  a 
box,  &c. 

u. 

Jin. 

Upper  frag,  of  tibia 
in   front  of  lower 
very  much  ;  useful 
limb. 

Im. 

39 

48  y. 

5  w 

M 

L 

Comp'd 
commi- 
nuted, 
with 
other 
compli- 
cat'ns. 

Box,  paste  band- 
age, and  later, 
double  inclined 
plane. 

u. 

35  d. 

im. 

Stiffness  in  ankle  af- 
ter 9  months. 

Im. 

40 

23  y. 

4  w. 

M 

R 

Comp'd 
commi- 
nuted, 
(both 
legs) 
rupture 
ofaitery 

Side  splints;  flex- 
ible position  at 
first,  then  box, 
swing,  &c. 

u. 

28  d. 

fin. 



Tm. 

41 

20  y. 

M 

R 

Comp'd 
commi- 
nuted ; 
rupture 
ofarter.v 

Gutta     percha  ; 
wired        frags, 
together. 

_ 

Died  on  5th  day. 

42 

31  y. 

7  w. 

M 

R 

Comp'd 

with 
fracr.  of 

femur 

same 

fide. 

Straight  splint. 

u. 

iin. 

Im. 

43 

40  y. 

M 

R 

Comp'd 
commi- 
nuted. 

Box,  cool  water, 
&c. 

N.U. 

Gangrene;   amputa- 
tion on  13th  day  ; 
death  on  IGth  day. 

456 


CIVIL  MALPRACTICE. 


TABLE  XL  — FEACTURES   OF   THE   FIBULA  AND   TIBIA 

( Continued). 

Shaft.     {Middle   Third.)     {Continued.) 


— 

o 

»-•■ 

6 

12 

.£3 

Result. 

o 

o 

■a 

Ml 

S 

.« 

OJ 

*ai 

O      . 

9 

^ 

•".S 

^ 

•5  g 

u 
o 

si 

Treatment. 

s 

'c 

3 
S 

3  O 

Remarks. 

o  .J 

o 

&§ 

ii 

)»! 

3 

'S 

i^ 

!Z 

< 

H 

02 

M 

s 

^         1 

u 

p 

< 

ft< 

44 

32  y. 

_ 

Comp'd 

Box,  side  splints, 

u. 

_ 

\  in. 

Slightly  bent  at  seat 

Im. 

commi- 

&c. 

of  fracture. 

nuted. 

a 

80  y. 

3y. 

M 

L 

Transv. 

Plaster  of  Paris. 

TJ. 

6  w. 

No. 

Reeder,  Lacon,  111. 

P. 

b 

38y.. 

^y■ 

M 

L 

Comp'd. 

Box ;  st'ch  band- 
age after  3  w. 

U. 

2  m. 

1  in- 

William    Hamilton, 
Galesburg,  111. 

Im. 

e 

36  y. 

4Jy. 

M 

R 

Simple. 

Starch  bandage. 

u. 

6  w. 

fin- 

Large  callus.    Wm. 
Hamilton . 

Im. 

a 

23  y. 

2y. 

M 

R 

Comp'd. 

Box ;  st'ch  band- 
age after  3  or  4 
weeks. 

u. 

2  m. 

fin. 

Slight  forward   pro- 
jection ;      exfolia- 
tion.    Wm.  Ham- 
ilton. 

Im. 

e 

37  y. 

3y. 

M 

R 

Simple. 

Starch  bandage. 

TJ. 

5  w. 

No. 

Wm.  Hamilton. 

P. 

f 

15  y. 

ly. 

F 

L 

Simple. 

Lateral    splints  ; 
Pott's  position. 

U. 

Im 

|in. 

Slight  curvature  for- 
ward and  outward. 
Self. 

Im. 

e 

36  y. 

8y. 

M 

L 

Simple 
oblique. 

Double    inclined 
plane. 

U. 

3  m. 

lin. 

Great  deformity. 

Im. 

h 

44  y. 

ly. 

M 

R 

Simple 
oblique. 

Tin  spl'ts ;  Pott's 
position. 

u. 

23  d. 

Jin. 

Partial  anchylosis  of 
ankle;  no  deform. 

Im. 

i 

Sly. 

19  y. 

M 

R 

Comp'd. 

Lateral  splints. 

u. 

6  w. 

fin. 

Upper     frag,     over- 
rides forward  and 
inwards. 

Im. 

J 

18  m. 

7y. 

M 

L 

Simple. 

Posterior    gutter 
tin  splint. 

u. 

25  d. 

No. 

No  trace  of  fracture. 

P. 

k 

49  y. 

9y. 

M 

R 

Simple. 

Box;   pasteboard 
splints. 

u. 

2  m. 

~ 

~              ~ 

I 

40  y. 

3  m. 

M 

R 

Simple. 

Box  and  plaster. 

u. 

6  w. 

Jin. 

Fenn.   Chicago  Med. 
Jo!«r.,  Oct.,  1869. 

Im. 

m 

23  y. 

6  w. 

M 

R 

Simple. 

Plaster  of  Paris. 

u. 

6  w. 

^in. 

Fenn.    Chicago  Med. 
Joi/j-.,  Oct.,  1869. 

Im. 

n 

28  y. 

6  w. 

F 

L 

Simple. 

Plaster  of   Paris 
after  12  days. 

u. 

7  w. 

No. 

Fenn.    Chicago  Med. 
Jour.,  Oct.,  1869. 

P. 

0 

22  y. 

6  w. 

M 

R 

Simple. 

Plaster  of  Paris. 

u. 

5  w. 

lin. 

Feun.    Chicago  Med. 
Jour.,  Oct.,  1869. 

Im. 

P 

42  y. 

8  w. 

M 

Ii 

Simple. 

Plaster  of  Paris. 

D.  U. 

52d 
day. 

N.  U. 

- 

Jin. 

Fenn.    Chicago  Med. 
Jour., Oct.,  1869. 

Im. 

5 

35  y. 

5  m. 

M 

L 

Comp'd 

Fracture    box  at 

_ 

_ 

Double    fracture    of 

Im. 

compli- 

first, then  st'ch 

femur     in     same 

cated. 

bandage. 

limb.     Fall  into  a 
coal  shaft  5')  feet ; 
case  h,  fracture  of 
neck  of  femur  ex- 
tra-caps ;  amputa- 

1 

tion. 

PEOGNOSIS   IN  FRACTURES. 


457 


TABLE  •XI.  —  FRACTURES    OF   THE   TIBIA  AND   FIBULA 

( Co7itinued) . 


Shaft.     {Lower   Third 

•) 

^ 

, 

a; 

a 

Result. 

o 

o 

3 

5 

. 

B     . 
>  u 

.So 

o 

O        . 

II 

Treatment. 

o 

a 

u 
a 

•6 
£ 
■fl 

3 

,       60 

•S.2 
a 

a  ti 

Rejurks. 

s 

U      . 

°  "S 

^  u 

-N  t^ 

-w 

c3    CJ 

a 

a  O 

6 

aS 

0)    S 

s  s 

«" 

M 

1* 

"a 

i^ 

gS. 

K 

< 

H 

m 

H 

o 

P 

[^ 

<; 

Ch 

45 

42  y. 

24  y. 

M 

L 

Simple, 

from 
musclar 
action, 

never 
displ'cd. 

Carved  splints. 

U. 

No. 

P. 

46 

25  y. 

4  m. 

F 

R 

S.,  tibia 
ob.  from 
musc'lar 

action, 
not 

much 
displ'cd. 

Gutta     percha 
splints,  &c. 

u. 

No. 

P. 

47 

14  y. 

8y. 

M 

R 

Simple 
oblique. 

— 

u. 

No. 

_             _ 

P. 

48 

34  y. 

ly- 

M 

R 

S.,  tibia 
transv. 
not  dis- 
placed, 
up.  end 
of  fibula 
in  place, 
low.  end 
inclined 
to  tibia. 

Pasteb'd    splints 
and  rollers. 

u. 

. 

No. 

P. 

49 

44  y. 

2  m. 

M 

R 

S.,  tibia 
wbliq'ly 
down  & 
in,  only 
slightly 
disprcd. 

Gutta  percha  and 
a  pillow. 

u. 

No. 

P. 

50 

My. 

21  y. 

M 

L 

Simple 
transv. 

Tin  splints. 

u. 

- 

No. 

P. 

51 

25  y. 

32  d. 

M 

S.,   tibia 
ob.,  no 

displace- 
ment. 

Starch  bandage. 

u. 

28  d. 

No. 

P. 

52 

_ 

6  m. 

M 

- 

Simple. 

Side  splints. 

u. 

_ 

No. 

—             — 

P. 

53 

15  y. 

6  w. 

M 

Simple. 

u. 

" 

No. 

Slight  outward  pro- 
jection of  tibia  at 
seat  of  fracture. 

P. 

54 

7y. 

Im. 

F 

- 

Simple 
oblique. 

Pasteb'd  splints; 
dble.  in.  plane. 

V. 

28  d. 

No. 

—              • — 

P. 

65 

- 

- 

F 

- 

S.,   tibia 
transv. 

Straw  junks. 

V. 

- 

No. 

_              _ 

P. 

56 

17  y. 

- 

M 

- 

S.,  tibia 
oblique. 

Gutta      percha 
splints. 

V. 

- 

No. 

Slight  bend  of  tibia 
at  seat  of  fracture. 

P. 

67 

6y. 

4  m. 

M 

_ 

Simple. 



u. 

- 

No. 

—              — 

P. 

58 

40  y. 

Im. 

M 

L 

S.,    tibia 

oblique, 

down  & 

back. 

Gutta    percha  ; 
Pott's  position, 
iSc. 

u. 

26  d. 

iin. 

Upper  frag,  of  tibia 
in  front. 

Im. 

59 

.26  y. 

ly. 

M 

L 

Simple. 

Simple;     limb 
laid  upon  its 
back. 

u. 

hirx. 

Upper  frag,  of  tibia 
iu  front ;  heel  fall- 
en backwards  and 
outwards ;     tibula 
inclined     against 
tibia. 

Im. 

458 


CIVIL  MALPEACTICE. 


TABLE  XL  — FRACTURES    OF   THE   TIBIA   AND.  FIBULA 

(Continued). 

Shaft.     (Lower   Third.)      {Continued.) 


i 

i 

i 

o 

Result. 

-t^ 

.-s 

.^ 

o 

"o 

■o 

ti 

1 

c    . 

o 

"c^ 

i"  2 

Treatment. 

g 

'5 

C   2 

^  o 

■—   sJ 

c 

■^   3 

p 

"S  .2 

Remarks. 

s=  z 

^  it 

£  1 

a 

§g 

■S<2 

fi-,  s 

.bS 

2 

2  .£ 

6 

S" 

B.  ^ 

M 

_g  tfci 

'S 

1°" 

^ 

< 

'~ 

jf_ 

o 

D 

^ 

< 

60 

43  y. 

2y. 

R 

Simple 

Side  .splints. 

u. 

_ 

1  in. 

Upper  frag,  of  tibia 

Im. 

tibia 

on  front  and  inner 

oblique. 

side  of  lower. 

61 

S3  3'. 

40  y. 

F 

L 

Simple; 

tibia 
oblique. 

u. 

^  in. 

Upper  frag,  of  tibia 
on   inner    side    of 
Ifwer.  fnotinclin'd 
in.  an!<le  stitl. 

Im. 

62 

22  y. 

10  y. 

M 

L 

Simple; 
tibia 
oblique. 

u. 

• 

iin. 

Slight   projection   at 
seat  of  fracture  ol 
til'ia. 

Im. 

63 

SOy. 

M 

R 

Simple ; 
oblique. 

Side  sp'int.<!  snd 
Pott's  position. 

TJ. 

35  d. 

iin. 

Upper  frflg.  of  tibia 
on  out-ide  of  lower 
very  slighth-. 

Im. 

64 

Sly. 

2in. 

M 

L 

Simple. 

Welch's   double 
inclined  plane, 
sf  ch  bandage. 

TJ. 

24  d. 

^in. 

Upp-r  frag,  of  t'bia 
slightly  in  front  ol 
lower. 

Im. 

65 

15  y. 

44  y. 

M 

L 

Simple  ; 

libia 
oblique. 

TJ. 

" 

iin. 

Upper  frag,  of  tibia 
in  front  and  inside 
of  lower. 

Im. 

66 

82  y. 

ly- 

M 

- 

Simple. 

— 

U. 

- 

i  in. 

— 

Im. 

67 

25  y. 

2in. 

M 

L 

Simple. 

Lateral    splint.«, 
Potfs  position. 

V. 

32  d. 

1-6  in. 

—               — 

~ 

68 

33  y. 

2y- 

M 

_ 

Simple. 



U. 

_ 

Uin. 

— 

Im. 

69 

40  y. 

2m. 

M 

- 

Simple. 

— 

U. 

- 

iin. 

Sliglitly  bent  at  seat 
of  fracture  of  tibia. 

Im. 

70 

54  y. 

1' 

' 

Simple. 

Lateral   splints, 
limb  laid  upon 
its  back. 

TJ. 

" 

iin. 

" 

Im. 

71 

43  y. 

10  w. 

M 

- 

Simple. 

— 

D.U. 

- 

A  in 

Callus  not    firm    in 
ten  weeks. 

Im. 

72 

38  y. 

SOy. 

M 

Simple. 

U. 

No. 

After  80  years  ankle 
siiff    and     tender 
an  1  muscles  atro- 
pliied;  no  shoiten- 
ing  or  def.  nnify. 

Im. 

73 

52  y. 

25  y. 

M 

Simple. 

" 

XT. 

" 

^in. 

Foot    inclined    out, 
ankle  stiff,  enlgd, 
painful. 

Im. 

74 

42  y. 

8y. 

M 

R 

Simple. 



U. 

- 

i  in. 

—               — 

Tm. 

75 

SO  y. 

3m. 

51 

L 

Pimple. 



V. 

_ 

i  in. 

— 

Tm. 

76 

35  y. 

6  w. 

M 

Simple. 

" 

V. 

fin. 

Upper  frag,  of  tiVii 
on  front  and  inner 
side  of  lower. 

Im. 

77 

37  y. 

25  y. 

M 

- 

Simple. 

— 

V. 

- 

iin. 

Foot  and  lower  part 
of  Ing  inclined  in. 

Im. 

78 

40  y. 

8y. 

M 

R 

Simple ; 

ti^iia 
oblique. 

Side        splints, 
straight  posi- 
tion on  back. 

V. 

iin. 

Unper  frag,  of  tibia 
on  inside  of  loner: 
upper  fr;(gment  of 
fibula    falls    back, 
much  callus. 

Im. 

79 

50  y. 

18  y. 

M 

R 

Simple ; 

tibia 
oblique. 

V. 

" 

No. 

Lower    part    of    leg 
inclined     forwards 
and  inwards. 

Im. 

80 

85  y. 

4ni. 

M 

r. 

Simple; 
tibia  ob. 

Double    inclined 
plane. 

V. 

- 

- 

Precise     lesult     un- 
known. 

"■ 

81 

49  y. 

2y. 

M 

L 

Simple. 

— 

V. 

- 

J  in. 

Limb  swollen  after  2 
years. 

Im. 

82 

3:y. 

6  w. 

M 

- 

Simple ; 
tibia  ob. 

Lateral  splints. 

u. 

- 

3  in. 

Upper   frac.  of  tibia 
on  inside  of  lower. 

Im. 

PROGNOSIS  IN  FRACTURES. 


459 


TABLE  XL  —  FRACTURES   OF   THE  TIBIA   AND   FIBULA 
(Continued). 

Shaft.     (Lower   Third.)      {Continued.) 


, 

^ 

o 

Result. 

o 

o 

i 

t. 

o 

■6 

bj) 

a 

.t^ 

•— 

■i^ 

o 

a 

.s 

0     • 

S 

-. 

s  s 

u 

'a 

°l 

t-  _j 

t-t 

■g  a 

Treatment. 

a 

-a 

9 

II 

Remarks. 

V  t- 

o 

Sj5 

< 

S3 

w 
M 

R 

"a 

J3 

< 

P-c 

83 

47  y. 

7in 

Simple  ; 

D.  U. 

120  d. 

fin. 

Upper  frag,  of  tibia 

Im. 

tibia 

in  front  of  lower ; 

obliq'ly 
down- 

lower part  of  limb 

falls  bark  ;  afcer  7 

wards 

months  ir,  is  swol- 

len    and     palieut 

inwards. 

unable  to  walk. 

84 

27  y. 

6w. 

M 

L 

Simple;  Straw      side 

D. 

- 

- 

Precipe    result    un- 

- 

tibia 

splints  :   doub- 

known. 

oblique. 

le      inclined 

85 

30  y. 

7  w. 

M 

R 

Simple ; 

tibia 
oblique. 

plane. 
Carved     .splint; 
Laid     limb    on 
back. 

U. 

21  d. 

in. 

Slight  bend  at  seat 
of  fracture. 

Im. 

86 

33  y. 

2y. 

M 

R 

Simple ; 

tibia 
transv. 

Hutchinson's 
splint ;       Jar- 
Tis's    adjustor. 

U. 

No. 

Ulcer  on  heel ;  lower 
part  of  leg  inclined 
in. 

Tm. 

87 

9  y. 

ly. 

M 

R 

CcmpV] 
commi- 
nuted. 

Lateral     splints. 
Pott's  position. 

U. 

No. 

Frag,  of  bone  exfoli- 
ated alter  3  m. 

P. 

88 

11  y- 

Itn. 

M 

R 

romp"d; 

frnjt.  of 
tibia 
not 
much 

difplc'd. 

Pott's     position, 
&c. 

U. 

28  d. 

No. 

P. 

89 

3   y. 

ly. 

51 

R 

Comp'd. 

V. 

No. 

Upper  frag,  of  tibia 
slightly   displaced 
b.•l(■l<wa^d^ ;    ulcer 
on  heel  from   ex- 
ten.'ive  laceration. 

P. 

90 

32  y. 

22  y. 

>I 

_ 

Comp'd. 

_ 

V. 

No. 

—               — 

P. 

91 

30  y. 

~ 

]\I 

" 

Comp'd. 

u. 

in. 

Upper  fr.ng.  of  tibia 
on  front  nnd  out- 
side of  lower. 

Im. 

92 

30  y. 

29  y. 

M 

R 

Comp'd  ; 

tibia 
oblique. 

— 

u. 

' 

iin. 

Ankle     occasionally 
painful     after    29 
years. 

Im. 

93 

14  y. 

ly. 

51 

L 

Comp'd  ; 

tibia 
oblique. 

Double  inclined 
plane ;     p.aste 
bandage,  &c. 

u. 

36  d. 

\m- 

Upper  frag,  of  tibia 
in  front  of  lower. 

Im 

94 

26  y. 

5  m. 

51 

- 

Couipd. 

u. 

- 

?(in. 

Small  frag,  of  bone 
exfoliitted. 

Im. 

95 

26  y. 

5  m. 

M 

R 

Comp'd. 

u. 

iin. 

Lower   part  of  limb 
falls  back:   ulcer 
over  .^e.it   of  frac. 
after  5  months. 

Im. 

96 

24  y. 

3  m. 

51 

L 

Comp'd. 

u. 

Upper  frag,  of  tibia 
in   front  <vf  lower; 
lower  part  of  limb 
falls  back. 

Im. 

97 

33  y. 

ly. 

51 

~ 

Comp'd : 

tibii 
oblique. 

Double  inclined 
plane  with  ex- 
tension. 

u. 

" 

A  in. 

.Vnkle    swollen    and 
painfnl  after    one 

year. 

Im 

98 

30  y. 

3y. 

M 

R 

Comp'd. 

u. 

iin. 

Sr'ine    projection    of 
tibia    Jit     feat     of 
fracture  ;  nicer  at 
same  poiut  after  3 
J  ears. 

Im. 

460 


CIVIL  MALPEACTICE. 


TABLE   XI.— rHACTURES    OE  THE  TIBIA  AND   EIBULA 

(Co7itinued). 

Shaft.     {Lower   Third.)      {Continued.) 


^  ^ 


99 
100 

101 

102 
103 

104 
105 
106 

107 

108 
109 


14  y. 
Sly. 

Oy. 

32  y. 
50  y. 

39  y. 
23  y. 

30  y. 

40  y. 

49  y. 

68  y. 
25  y. 

iy- 

45  y. 

25  y. 
35  y. 

32  y. 
21  y. 
50  y. 


7  y.  jM 
15  y.  ;M 

12  y. 


2y. 


6y. 


4  w, 


ly- 


8  m. 
27  y. 
^7^ 

ly. 

3Jy. 
5y. 

6y. 
15  y.  M 
3y. 


Comp'd . 

Comp'd; 

tibia 
oblique. 
Comp'd. 


Comp'd 
commi. 
Comp'd 
commi. 

Comp'd 
commi. 


Comp'd 
commi. 
rupture 
of  artery 
Comp'd 
commi. 
and 
com- 
plicated. 


C.  com. 
&c. 

Comp'd 
commi- 
nuted. 

Trans V. 


Suspension  in  a 

box. 
Hutchinson's 
splint,  &c. 


Box,  paste  band' 

age,  &c. 
Swing  splint,  ex 

tension,  &c. 

Box,  &c. 


Side  splints,  &c. 
(See  case  40.) 


Paste  bandage ; 
double  inclined 
plane  ;  resect'n 
of  projecting 
bone  on  30  th  d. 


Double  inclined 
plane ;  resect'n 
of  bone  on  19th 
day. 

Plaster  of  Paris 


Result. 


D.  U 
U. 


N.U 
IT. 


Simple 
oblique. 

Simple. 

Simple. 

Simple. 
Comp'd 
commi- 
nuted. 

Simple. 


Comp'd 
com- 
plicated. 
Comp'd. 


Carved  lateral 
splints ;  exten. 
st'ch  bandage. 

Box ;       starch 
bandage. 

Starch  bandage. 

Starch  bandage. 
Short  splints  10 

days  then  st'ch 

bandage. 

Starch  bandage. 


U. 


84  d. 


o  5 
2^ 


28  d. 


lin. 
4  in. 

No. 

^in. 
Jin. 


Uin. 


Ulcer  healed  after  8 
years. 

Ulcer  on  heel ;  slight 
lateral   displace- 
ment of  tibia. 

Abscess  formed  in 
tibia  and  amputa- 
tion after  12  years. 

Upper  frag,  of  tibia 
on  outs,  of  lower 

Ulcer  on  heel ;  lower 
part  of  limb  falls 
back. 

Crooked  ;  after  6  yrs 
it  is  occasionally 
painful.  Several 
frags,  exfoliated 


Upper  frag,  of  tibia 
in  front  of  lower 


Amputation  on  15th  im. 

day. 
Amputation  on  34th  jm. 

day. 
Abscess  of  bone  after  ini. 

several  years. 


12  y. 


Simple  dressing. 


Box ;     extension 
j    by  weigh 


6  w 


5  w 


Jin. 


Reeder,  Lacon,  111. 

Reeder ;     some    de- 
formity. 

Some  deformity 
^Ym.  Hamilton. 

VTm.  Hamilton,  con 

suiting  surgeon. 

No.  Wm.  Hamilton.  P. 

Wm.  Hamilton.  Was  Im. 
twice  sent   for  to 
amputate.       Very 
useful  limb. 

No  curvature  or  de- 
formity. William 
Hamilton. 

R.  R.  injury ;  died 
10th  day.     Reece 

Died  8th  day  ;  embo-  Im. 
lism     pulmonary. 
Reece. 


PROGNOSIS   IN  FRACTURES. 


461 


TABLE   XL —FRACTURES   OF   THE    TIBIA   AND   FIBULA 

( Continued). 

Shaft.      {Lower  Third.)      (Continued.) 


■       « 

Result. 

o 

°            ~i 

-      t. 

o 

■d 

tb 

a 

,n 

'^             i 

-         o     . 

a 

s 

V,   c 

r* 

6 

Time  since 
curred. 

Sex. 

Character 
fracture, 

Treatment. 

o 

c 

'3 
p 
a 

S3 

a  2 
o  ° 

< 

1  Perfect  or 
1      perfect. 

J 

6y.  1 

7y.   Mil 

I  Commi-   Salter's  apparat. 

U. 

4  w.  None.  Reece.  No  deformity. 

P. 

k 

51  y. 

7y.  Ml 

nuted. 
I     Com-      f 

Splints  10  days, 

U. 

4w. 

*Jone.  Reece.  No  deformity. | 

P. 

pound. 

then  starch. 

I 

50  y. 

2  m.M 

^    Simple,  i 

Starch  bandage. 

TJ. 

Jin. 

Upper  frag,  projects 
in  front  of  lower. 
Reece. 

Im. 

m 

55  y. 

8  y.  M 

J    Simple. 

3alter'8  apparat. 

U. 

5w. 

!^one. 

leece.  No  deformity. 

P. 

n 

10  y. 

5y.  F 

J    Simple. 

u. 

4  w. 

Vone. 

leece.  No  deformity. 

P. 

0 

36  y. 

3y.  M 

L    Simple.  I 

Salter's  apparat. 

u. 

3  w. 

\one. 

leece.    Sli't  deform. 

Im. 

p 

13  y. 

7y.  M 

R    Simple. 

Splints. 

u. 

3w. 

None. 

leece.  No  deformity. 

P. 

q 

12  y. 

2y.  M 

R    Simple. 

lateral  splints. 

- 

3  w. 

None. 

ieece.  No  deformity. 

P. 

r 

30  y. 

13  y.  M 

R     Com- 
pound. 

Mclntyre's      ap- 
paratus. 

Reece.           Delirium 
Tremens,    3    days 
after  injury. 

Im. 

s 

16  y. 

8  y.  M 

L      Simple 
oblique. 

Carved  posterior 
splint  with  foot 

u. 

6w. 

Urn. 

Partial     anchylosis ; 
great  deformity. 

Im. 

t 

16  y. 

2y.  M 

L    Simple 
oblique. 

piece. 
Lateral      curved 
splints. 

u. 

- 

iin. 

Tibia  projects  ante- 
riorly, slightly. 

Im. 

u 

57  y- 

17  y.  M 

R    Com- 
pound. 
L     Cora- 

Boot  leg. 

u. 

6  w. 

J  in. 

Foot  and  lower  part 
of  leg  incurved. 

Im. 

V 

24  y. 

14  y.  M 

Lateral  splints. 

u. 

6  w. 

None. 

Anchylosis  of  ankle 

Im. 

pound. 

4  years. 

w 

40  y. 

8y.  M 

L    Simple. 

Posterior  splint. 
Double  inclined 
plane. 

u. 

6  w. 

1  in- 

Upper     frag,     over- 
rides. 

Im. 

X 

49  y. 

2y.  M 

Ii    Simple. 

Lateral     splints. 
Pott's  position. 

u. 

Im. 

iin. 

Upper     frag,     over- 
rides in  front. 

Im. 

V 

17  y. 

33  y.  M 

L    Simple 
compile. 

Lateral  splints. 

u. 

Im. 

iin. 

Anchylosis  of  hip. 

Im. 

2 

3y. 

-     M 

L    Compli- 
cated. 

Plaster  of  Paris. 

- 

- 

~ 

Death  from  gangrene 
32  days. 

Im. 

i 

28  y. 

5  m.F 

R    Simple. 

Not  known. 

N.U 

- 

- 

—              — 

ii 

40  y. 

Im.  F 

-    Simple. 

Box. 

u. 

Im. 

- 

Med.  Times,  vol.  ii., 
p.  169. 

Im. 

iu 

23  y. 

37  d.  M 

R     Com- 
pound. 

Fracture  box. 

u. 

5  w. 

- 

Slight  projection  for- 
ward.   Id. 

Im. 

iv 

2  y- 

-     M 

-  Conip-d. 

.\mputation. 

- 

- 

- 

Flaps  sloughed.     Id 

Im. 

•V 

25  y. 

35  y.  M 

R    Simple. 

Unknown. 

u. 

- 

iin. 

See  remarks.  Ilallam 
&  Barnes  v.  Means 

Im. 

T 

21  y. 

9w.  M 

R    Simple. 

Lateral     splints 
extension,  &c. 

D.U 

~ 

Iin. 

See  Ciise   of  Harper 
ch.     on    Skill    in 
Diagnosis. 

Im. 

vi 

11  y- 

4y.   M 

L    Simple. 

Lateral     splints 
extension      b} 
weight,  &c. 

U. 

Im. 

None. 

Leg  bowed  out. 

Im. 

vii 

65  y. 

-     F 

I    Simple 
couiplic 

Died  next  day. 

" 

Pepper.     Am.   Jour 
Med.     Sci.,    Oct. 
1866. 

l2 

c  30  y. 

Im   > 

L    Simple 

Starch  bandage. 

U. 

Im. 

i-in. 

Very  slight  incurv.-v 
tion. 

-  Im 

= 

t  30  y 

9  m.  J 

[  R    Simple 

.  Starch  bandage. 

u. 

5  w. 

§in. 

Some  callus  remains 
Aldrioh  (iilson,  III 

.  Im 

Z 

i  64  y. 

5  m.  > 

[  L    Simple 

Sturch  bandage. 

u. 

7  w. 

iin 

Linilj  only  compara 
lively  useful.      Al 
drich   Gilson,  111. 

-  Im 

X 

i  40  y 

15  w.  F 

R    Simple 

— 

N.  n 

- 

- 

Med.  Times,  vol.  iii 

.  Im 

1    " 

1 

p   819. 

462 


CIVIL   MALPEACTICE. 


TABLE   XL  — FRACTURES   OF   THE   TIBIA  AND   FIBULA 

( Continued). 

Malleolus  Interims  and  Fibula  above  Ankle-joint.     (Lower  Third.) 

(  Continued.) 


, 

2J 

» 

Result. 

u 

o 

3 

p^ 

\^ 

o 

J_, 

■^ 

«tH 

o 

■d 

tb 

a 

-*^ 

.« 

i^ 

o 

a 

-2f 

•".H 

>~* 

'li 

i 

.S  a 

Treatment. 

o 

'S 
s 
a 

5  o 

Remaeks. 

u     * 
o  ^ 

11 

3>    n 

£  :3 

c  _^ 

^    3) 

6 

to-' 

-    1^ 

M 

1 

'a 

p 

a  •= 
< 

CM 

lie 

51  y. 

Simple ; 

Side  splints,  &c. 

V. 

- 

None. 

Lower  Irag.  of  fibula 

Im. 

fibula 

against  tibia. 

broken  3 

11.  above 

lower 

end. 

T, 

111 

M 

S.  Fibula 
broken 
a  little 
ab  VB 
ankle 

None. 

P. 

112 

35  y. 

ly. 

M 

L, 

S.  {bjth 

legs 
broken.) 
S.  fibula 
liroken  3 

Double    inclined 
plane,  &c. 

V. 

~ 

Xoue. 

P. 

113 

59  y. 

9m 

\> 

11 

Side  splints,  &c. 

V. 

- 

Xone. 

JIal.    int.    displaced 
down ;        fibula 

Im. 

in. above 

against       tibia  ; 

lower 

ankle  some  stiff. 

114 

3y. 

30  y. 

M 

II 

end 
.S.  fibula 
broken  4 
inches 

above 

lower 

' 

u. 

None. 

Limb  atrophied  after 
30  v.,  and   tender 
about  the  ankle  ; 
neither    short,    or 
deformed. 

Im. 

115 

27  y. 

■ 

ly- 

M 

end. 

S.  fibula 

4  ini'.hes 

above 

lower 

eud. 

u. 

None. 

.■^fter  1  y.,  motion? 
of  joint    limited  : 
tibia     unreduced ; 
frag.      of      fibula 
fills  against  tibia; 
prosecution. 

Im. 

116 

31  y. 

8y. 

M 

L 

.S.  fibula 

4  inches 

above 

lower 

end. 

Dupuytren's 

splint,  &«. 

u. 

None. 

Tibia        unreduced ; 
frag,  of  fibula  falls 
against  tibia,  &c. 

Im. 

117 

7y. 

M 

S.   2  in. 
above 
loiver 

eud   fib- 

Splints, &c. 

u. 

None. 

118 

50  y. 

18  m. 

M 

U 

ula. 
S.  fibula 

Splints,  &o. 

u. 

- 

None. 

Foot    inclines    out ; 

Im. 

4     in. 

tibia  pnject^  on  in- 

above 

side;  frag,  of  fibula 

lower 

against  tibia. 

119 

37  y. 

- 

F 

- 

end. 

3.  fibula 

Siin.ab. 

fower 

Dupuytren's 
splint,  &c. 

u. 

19  d. 

None. 

Up.  frag:,    of  fibula 
fulls  towards  tibia. 

P. 

120 

32  y. 

4  m. 

M 

R 

end. 
Comnii- 
nuled  of 
tibia  ; 
fibula    2 
in.  ab. 
ankle. 

u. 

None. 

Tibia  displaced    for- 
wards     and       in- 
wards ;     frag,      of 
fibula  falls  against 
tibia ;      ulcer     on 
heel. 

Im. 

PROGNOSIS  IN  FRACTURES. 


463 


TABLE  XL  — FRACTURES   OF  THE   TIBIA   AND   FIBULA 

(Co)itinued.) 

Malleolus  Infermis  and  Externus.     {Lower  Third.) 


Not  broken  in  the 

same  Divisions. 

122 

23  y. 

7  w. 

M 

R 

Simple 
T.  in  U. 

\  Kib.  in 
L.  i. 

Splints,   paste, 
&c. 

u. 

- 

None. 

-              - 

P. 

123 

33  y. 

ly- 

M 

R 

Com- 
pound 

T.  in  L. 

I  F.  in 
U.J. 

SMe      splints ; 
double  incliued 
plane,  &c. 

u. 

liin. 

Ankle  stiff,  &c. 

Im. 

TABLE    A. 

Dr.  Frederick  E.  Hyde,  of  New  York,  published  in  the 
New  York  Med.  Joiir.,  October,  1874,  a  tabulated  statement 
of  308  Cases  of  Fracture  of  the  Femur,  treated  at  Bellevue 
Hospital,  New  York  city,  from  1865  to  1873  inclusive.  The 
surgeons  in  charge  during  this  time  were  Drs.  Crane,  Goulay, 
Hamilton,  Markoe,  Mott,  Sands,  Sayre,  Smith,*  and  Wood. 
These  surgeons,  it  must  be  remembered,  received  their 
hospital  appointments  from  their  known  skill  in  surgery. 
Further,  they  were  usually,  if  not  always,  able  to  command 
skilled  assistants.  Of  this  number,  no  mention  is  made  in  the 
Hospital  Records,  in  respect  to  length,  in  197  cases.  Number 
of  cases  without  shortening,  19.  Number  of  cases  in  which 
shortening  occurred,  92.  Average  shortening,  excluding 
perfect  cases,  in  eighths  of  inches,  5.7,  or  about  |  of  an 
inch.  Average  shortening,  including  perfect  cases,  in  eighths 
of  inches,  4.3,  or  about  \  an  inch. 


464  CIVIL  MALPRACTICE. 

In  the  Medical  Record  for  July  31,  1875,  Dr.  Hyde  has 
extended  his  tables  so  as  to  include  14  more  cases.  In  the 
322  cases  there  were  8  cases  of  non-union.  The  ages  of  the 
patients  ranged  from  two  years  to  ninety  years. 

His  conclusions,  in  respect  to  shortening,  and  in  this  he 
will  be  corroborated  by  practical  surgeons  everywhere,  not 
only  in  fractures  of  the  femur,  but  in  other  fractures  also, 
are,  that  the  best  results  are  obtained  in  patients  under  ten 
years  of  age,  the  average  shortening,  excluding  cases  not 
shortened,  being  i  an  inch,  and  including  cases  not  shortened 
I  of  an  inch.  The  worst  results  are,  according  to  his  tables, 
found  in  persons  between  sixty  and  seventy  years  of  age ;  in 
one  only  was  no  shortening  found,  excluding  which  case,  the 
shortening  being  1  inch,  and  including  it  |  of  an  inch.  He  re- 
marks further  :  "  Between  these  extremes  we  notice  that  the 
cases  in  which  there  is  no  shortening  gradually  decrease  in 
numbers  as  years  advance." 

In  respect  to  splints,  he  says  :  "  The  time  the  splint  was 
on,  or  the  time  required  for  union  of  the  fracture,  is  in  the 
first  decade,  about  4^  weeks  ;  in  the  second  decade,  about  6 
weeks ;  in  the  third  decade,  5|-  weeks ;  in  the  fourth  decade, 
6|  weeks  ;  in  the  fifth  decade  6  weeks  ;  in  the  sixth  decade, 
9 1- weeks,  —  one  case  having  the  splints  applied  for  102  days, 
makes  this  average  high  ;  in  the  seventh  decade,  7  weeks  ;  in 
the  eighth  and  ninth  decades  there  is  no  record  of  this  point. 
We  find  in  each  decade  the  usual  3  or  4  weeks  of  conva- 
lescence additional  to  complete  the  period  in  hospital." 

Dr.  Hyde's  Tables,  and  paper  accompanying,  thrOw  a  great 
deal  of  light  on  these  several  points,  and  several  others  which 
I  could  not  do  justice  to  in  a  simple  analysis,  but  he  says 
little  or  nothing  about  deformity  and  loss  of  function,  the 
very  points  that  are  usually  made  in  suits  for  alleged  mal- 
practice. But  this  is  a  point  upon  which  hospitals  as  well  as 
individual  surgeons  are  tender.  The  profession  is  under 
obligation  to  Dr.  Hyde  for  his  valuable  papers ;  but  in  the 
language  of  the  motto  Dr.  Hamilton  selected  for  the  first 
chapter  of  his  Report  on  Deformities,  "  That  a  '  cure  '  took 


PROGNOSIS  IN  FRACTURES.  465 

place  we  do  not  doubt,  but  the  information  we  should  most 
desire  would  be  on  the  length  of  the  cured  limb,  and  a  few 
other  matters  of  that  sort."  The  first  Dr.  Hyde  has  given 
us  ;  "  the  few  other  matters  "  is  what  surgeons  most  earnestly 
desire.^ 

Since  writing  the  foregoing.  Dr.  Hyde  has  favored  me  with 
the  following  statement : 

"  In  looking  over  my  transcript  of  records,  I  find  only  12 
cases  in  which  any  reference  is  made  to  anchylosis,  from  "  a 
little  stiffness  of  the  knee,"  to  "  very  little  motion  at  the 
knee."  In  regard  to  deformity,  I  find  also  12  cases;  all  of 
these  but  five  simply  have  recorded  "  some  deformity,"  or 
"  deformity."  The  five  exceptions  are  recorded  respectively 
as  "  considerable  angular  deformity,  lower  fragment  ad- 
ducted."  "  Upper  fragment  slightly  lifted."  "  Slight  ever- 
sion  of  foot."  "  Some  bowing  outwards."  "  Bone  was 
curved  backwards." 

The  reader  is  referred  to  his  valuable  paper  for  a  more 
detailed  statement  and  analysis.  Through  his  kindness  I 
am  permitted  to  present  his  tables. 

1  In  1857,  Holthouse,  of  London,  examined  fifty  cases  of  fracture  of  the  femur. 
Of  this  number  forty-one  were  males  and  nine  females.  Ages  ranged  from  two 
years  to  eighty-four.  Thirty  were  adults  and  twenty  children.  Only  fifteen 
escaped  deformity,  and  of  these  three  were  children.  Holmes's  Syst.  of  Surg. 
Tol.  ii. 

30 


466 


CIVIL   MALPEACTICE. 


H 
< 

O 

I— I 
O 

H 
O 

P^ 
O 

> 
< 


pa 

Hi 


"^.s  2  c  a 
^  «  „  .« .« 


1^   Si.— 
si.S  S*= 

O    5^    M 


.5  H.S 


Least  shorten- 


s 


Most  shorten- 
ing. 


Not  shortened. 


(MOO    1  t~ 


Average  time. 


.5  .S  .2 


a  .=  .2 

CO   — r-l 


M   .*05         50     I    7-H 


cq  COC2 
lO  coco 


Longest  time. 


Shortest  time. 


■^  I  oj   I  c-i 


CO  Dl  CO         O         IM 


Cases  noted. 


CT    I  CO   1  !  O   CO  ■*       rt    I  l— 


Piesult  not 
stated. 


Deaths. 


(MN-i'    I  00 


P5 


coo  CO    I  IM 


Right. 


Left. 


lU; 


Not  stated. 


■*r-tCO     I   i-H 


T^    O  l~  I— 


Comp.  Compt. 


Comp.  Comm. 


Compound. 


Simp.  Compl. 
Simp.  Comm. 


Simple. 


5  0CO     I   l~ 


CO  .-1-*        CO 


f-  O  L—        O     1    lO 


35  CO  00        C'l     I  OJ 


CQ  t^Ol       CO 


Male. 


o3        Female. 


OOO    I  ca 


No.  of  Cases. 


■*'■■- 2   1  rJ 


t—  CO  lO        CO     1   t-* 


L^  OO  CO         »0     I    CO 


.«■  00  C-1         O     1  -* 

CO  CO  CO        CNl        JO 


<N    =i 


2  1= 


O    o 

II 


go 

%'i 

=  1 

cS    S 

-c  8 

a^ 

E    c3 

£  ., 
8'H 


£| 

c».  .S 
O    £ 


o     .d 


.2      o2 

2      ®  == 
^    *  .^  "S 

o  o  5,_2 
si  5-2 


5  -'2     £ 


O    O         C   =3  g 


i  go        3 


I     I 


H  E^H 


P  Sn^a- 


£     M  I  1 

3      ^Z^Z 


E  a 


-s  £  o 

>  ■w  _ 

^   c;  eS 
.Si 


•3    ^    '^    S 

o  o  si  2 


ccOchO 


e 


PROGNOSIS  IN   FRACTURES. 


467 


TABLE  B,  HAVING  REFERENCE  TO  THE  CHARACTER  OF  THE 

FRACTURE. 


Character  of  Fracture. 


Simple 

Simple  Comminuted... 
Simple  Complicated  . . 
Simple  Comm.  Compl.. 

Total.  Simple,  &c 


Compound 

Comp.  Comminuted.. . . 

Comp.  Complicated 

Comp.  Comm.  Compl.. 

Total,  Compound,  &c.. 


Comminuted. 
Not  stated. . . 


Summary  of  Simple, 
Comp  ,  Comm.,  and 
not  stated 


Non- 
lunion. 


o     o 


218   6 


21  - 

1   - 


24.3   6 


Death. 


ft,     Z 
2.75 


2.46 


3.21 


47.61 
100. 


7.4 


Time 

the 

splint 

was  on. 


Time 
patients 
were  in 
hospital. 


414 


35 


41|  I  42 


Shortening. 


Average,  exclud- 
ing not  short- 
ened, in  eighths 
of  an  inch. 


5.09  or  about   | 
6.  "  f 

10.  "         li 


24 

1 

4.16 

6 

- 

_ 

5 

_ 

_ 

2 

- 

- 

37 

1 

2.70 

45.83 
83.33 
40. 
50. 


43.23 


1143 
130 

2!36i 


82 


82 


4  3.75 

2i7. 


64.83       or 


1,2.611  61  15.78!  2  45 


-  I    -  I  -[  114. 
3  |il58   1 13  6.* 


.322  82.48 


12.42l40|41io|  46 


'Sj^llS 


including, 
not   short- 
ened, in 
eighths  of 
an  inch. 


4.23  or  J 
6.  "  i 
7.5    "  1 


67^|16j78  5.29         or         |    4.39  or  ^ 


4.14  or  i 


4.      or  J 
5.85  "  J 


5.38      or         |l  4.55  or  J 


1  One  case  in  hospital  358  days  makes  this  average  high. 


468 


CIVIL   MALPKACTICE. 


TABLE  C,  HAVING  EEFERENCE  TO  AGE. 


Sex. 

Point  of 
Fracture. 

Character 

of 
Fracture. 

Result  as 
to  Cure. 

Time  the 
splint  re- 
mained on. 

Time  the 
patient 
was  in 

hospital. 

Shortening, 

in  eighths  of  an 

inch. 

>» 

^ 

, 

bo 

bo 

Age  in 
Years. 

V 

% 

2 

0 

u 

0 

0 

0 

SI 

'-Si 

1  S 

''S'S 

d 
a 

"5 

,^, 

s 

5 

■a 

■a 

a, 

a 
3 
0 

■a 

c 

c 
.2 

'3 
3 

jf 

0 

c 

0  u 
0  0 

0 

1 

tg  0 

0 

;zi 
1 

0 

il 

? 

^ 

p. 

■3 

j:; 

0 

a 

0 

0 

a 

d 

^ 

0 

0 

!>   - 

!»   fl 

1 

1 

i 

'A 

u> 

1 

- 

0 

•A 

02 
1 

0 

;2; 

■J 
1 

i5 

a 

« 

z; 

<! 

12; 

<i 

^ 

1 

<1 

<J 

2 

_ 

_ 

12. 

12. 

2^... 

1 

1 

_ 

- 

- 

1 

_ 

_ 

- 

1 

_ 

_ 

1 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

1 

2. 

2. 

3:.... 

3 

2 

1 

- 

- 

3 

- 

_ 

- 

3 

_ 

_ 

2 

_ 

1 

2 

37i 

_ 

_ 

_ 

2 

4.5 

4.5 

8^... 

2 

- 

2 

- 

- 

2 

- 

_ 

- 

2 

_ 

_ 

2 

_ 

- 

_ 

1 

29 

_ 

_ 

_ 

2 

3. 

3. 

4 

8 

- 

8 

- 

1 

2 

_ 

_ 

- 

1 

1 

_ 

2 

_ 

^ 

_ 

1 

30 

_ 

_ 

1 

1 

4, 

2 

5 

4 

1 

8 

- 

_ 

4 

_ 

_ 

- 

4 

_ 

_ 

3 

_ 

_ 

1 

1 

27 

1 

49 

2 

1 

4. 

1.33 

6 

10 

1 

S 

- 

_ 

10 

-. 

_ 

- 

9 

1 

_ 

1 

_ 

2 

1 

1 

38 

3 

59i 

3 

1 

4. 

1. 

7 

5 

2 

8 

- 

1 

3 

1 

_ 

_ 

s 

_ 

_ 

2 

_ 

_ 

3 

2. 

34 

2 

45 

1 

_ 

- 

- 

8 

6 

- 

.5 

- 

1 

fi 

- 

_ 

_ 

4 

_ 

_ 

5 

_ 

_ 

1 

2 

34* 

2 

50* 

_ 

5 

2.2 

2.2 

9 

5 

'> 

8 

_ 

1 

4 

_ 

_ 

_ 

4 

1 

_ 

4 

_ 

1 

_ 

3 

34f 

1 

73 

_ 

3 

5.38 

5.33 

9|.... 

1 

- 

1 

- 

_ 

_ 

1 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

_ 

1 

_ 

_ 

_ 

_ 

- 

10 

10 

i 

2 
12 

8 
37 

- 

^ 

9 
44 

1 

3 

- 

- 

6 

40 

2 
5 

- 

7 
36 

- 

1 

5 

2 

10 

- 

31 

1 

63 
55J 

7 

6 
23 

4.16 

4.16 

Totals.. 

13 

10 

4.04 

3.1 

Note.  —  In  two  cases,  one  of  6  and  the  other  of  8  years,  the  sex  is  not  recorded.  In  addition 
to  the  simple  and  compound  fractures  given  above,  there  are  the  following :  one  case  of  simple 
comminuted  at  9*  3ears  ;  two  cases  of  simple  complicated,  one  at  8,  and  the  other  at  10  years  ; 
two  cases  of  compound  comminuted,  one  at  8,  and  the  other  at  10  years  ;  and  one  case  of  com- 
pound, comminuted  and  complicated,  at  4  years  of  age. 


11 

7 

1 

6 

1 

6 

6 

3 

4 

1 

40 

1 

2 

5. 

8.33 

12 

2 

- 

2 

_ 

_ 

2 

_ 

_ 

_ 

2 

_ 

_ 

2 

_ 

_ 

_ 

1 

38 

1 

47 

1 

1 

fi. 

3. 

13 

4 

- 

4 

_ 

_ 

4 

_ 

_ 

_ 

3 

_ 

_ 

_ 

_ 

1 

3 

_ 

_ 

_ 

_ 

14 

5 

_ 

5 

_ 

1 

4 

_ 

_ 

_ 

2 

_ 

1 

2 

_ 

3 

_ 

_ 

_ 

_ 

2 

5. 

5. 

15 

3 

- 

3 

- 

_ 

1 

2 

_ 

_ 

1 

_ 

_ 

2 

_ 

_ 

1 

1 

45 

2 

6U 

1 

1 

1. 

0.5 

16...... 

4 

- 

3 

- 

- 

4 

_ 

_ 

_ 

3 

_ 

_ 

3 

_ 

_ 

1 

_ 

_ 

1 

57 

_ 

2 

5. 

5. 

17 

4 

_ 

4 

_ 

_ 

4 

_ 

_ 

_ 

3 

_ 

_ 

_ 

_ 

4 

_ 

_ 

_ 

_ 

_ 

_ 

18. .... 

2 

_ 

2 

_ 

_ 

2 

_ 

_ 

_ 

1 

_ 

_ 

1 

_ 

_ 

1 

1 

51 

_ 

_ 

_ 

1 

6. 

6. 

19 

1 

- 

1 

1 

_ 

_ 

_ 

1 

_ 

_ 

_ 

_ 

1 

_ 

_ 

_ 

_ 

_ 

- 

- 

20 

5 

1 

4 

1 

-1  2 

2 

- 

- 

2 

- 

5 

- 

- 

- 

- 

1 

88 

- 

4 

6.2 

6.2 

Totals.. 

37 

2 

34 

2 

229 

4 

- 

- 

24 

1 

1 

18 

- 

1 

18 

4 

43J 

5 

63 

3 

13 

5.23 

4.25 

Note.  — One  case  of  16  years,  sex  not  recorded.  One  extra-capsular  fracture  of  the  neck  at 
20  years.  One  simple  comminuted  fracture  at  14  years,  and  one  at  20  years.  One  simple  com- 
plicated at  11  years,  one  at  13,  two  at  15,  and  one  at  16  years.  One  gunshot  fracture  at  18  years. 
One  compound  comminuted  at  17  years,  and  one  at  20  years.  One  comminuted,  other  characters 
not  stated,  at  20  years. 


21 

2 

2 

2 

2 

2 

1 

42 

1 

58 

22 

2 

_ 

2 

_ 

_ 

2 

_ 

- 

_ 

1 

1 

_ 

_ 

_ 

_ 

2 

1 

43 

_ 

_ 

_ 

- 

_ 

- 

23 

6 

_ 

6 

_ 

_ 

6 

_ 

_ 

_ 

5 

_ 

_ 

3 

_ 

_ 

3 

1 

76 

2 

_ 

_ 

_ 

24 

6 

3 

3 

_ 

3 

3 

_ 

_ 

_ 

4 

_ 

2 

3 

_ 

1 

2 

_ 

_ 

_ 

_ 

4 

6.5 

6.5 

25 

2 

- 

2 

1 

_ 

_ 

_ 

1 

_ 

2 

_ 

_ 

1 

_ 

_ 

1 

_ 

_ 

_ 

_ 

_ 

_ 

- 

- 

26 

5 

_ 

5 

_ 

1 

3 

_ 

1 

_ 

4 

_ 

1 

2 

_ 

_ 

3 

_ 

_ 

2 

77* 

_ 

1 

10 

10. 

27 

7 

_ 

7 

_ 

1 

4 

2 

_ 

_ 

4 

1 

2 

4 

_ 

1 

2 

2 

42^ 

1 

67 

_ 

3 

4.88 

4  83 

28 

9 

- 

7 

1 

- 

5 

_ 

2 

1 

5 

3 

_ 

4 

_ 

2 

3 

1 

40 

_ 

1 

2 

8. 

2. 

29 

3 

- 

3 

2 

- 

1 

- 

- 

_ 

3 

_ 

_ 

1 

1 

_ 

1 

1 

29 

1 

70 

_ 

1 

6. 

6. 

30 

8 
50 

3 

8 
45 

1 
6 

1 

5 
31 

1 
3 

4 

1 

5 
35 

1 

6 

- 

3 

1 

2 

6 

3 

20 

1 

35 
391 

- 

71 

3 

3 

14 

3. 

4.78 

3. 

Totals.. 

5 

23 

7 

6 

3.94 

Note.  —  Sex  not  recorded  in  two  cases  28  years  of  age.  One  extra-capsular  at  25  years,  and 
one  at  30  years  of  age.  One  simple  complicated  at  23  years,  one  at  28,  and  one  at  30  years.  One 
compound  complicated  at  30  years  of  age. 


PROGNOSIS   IN  FRACTUEES. 


469 


TABLE  C,  HAVING  REFERENCE  TO  AGE  (Continued). 


Sex. 

■point  of 
Fracture. 

Character 

of 
Fracture. 

Kesult  as 
to  Cure. 

Time  the 
splint  re- 
mained on. 

'i'luje  the 
patient 
was  in 

hospital. 

Shortening, 

in  eighths  of  an 

inch. 

?: 

?. 

M 

□     . 

Age  in 

1 

■■3V, 

"Ss 

Years. 

■3 

ii 

•a 

9 

V 

2 

_2 

i 

■s 

3. 

a 
3 
0 
p- 

■d 

c 

K 

H 

If 
0  u 

0 

6 
to 

1"° 

0 

g 

a 
0 

M 

c 
S 

"3  ® 
»  c 

«  — 

i:  0 

s  a 
■SB 

o 

c 

0 

0 

0 

t> 

0 

i> 

0 

2 

1 

'^ 

1 

a 

P 

-^ 

1 

0 

« 

CO 

1 

0 

« 

P 
1 

iz; 

fi 

ic 

a 

< 

« 

-=1 

1 

M 

■< 

<! 

31 

_ 

_ 

_ 

_ 

32 

5 

- 

fi 

1 

_ 

1 

2 

- 

1 

2 

_ 

_ 

1 

_ 

2 

2 

_ 

_ 

- 

_ 

_ 

1 

4. 

4. 

33 

3 

- 

3 

_ 

1 

2 

_ 

_ 

_ 

S 

_ 

_ 

3 

- 

_ 

_ 

1 

54 

1 

109 

1 

2 

55 

3.66 

34 

1 

1 

_ 

_ 

1 

_ 

_ 

_ 

1 

_ 

_ 

1 

_ 

- 

- 

1 

35 

1 

55 

- 

_ 

- 

- 

35 

12 

3 

9 

1 

1 

( 

1 

_ 

2 

2 

_ 

5 

_ 

4 

S 

1 

54 

3 

82# 

_ 

4 

6.25 

6.25 

36 

5 

_ 

5 

1 

_ 

2 

1 

1 

_ 

9 

1 

_ 

2 

_ 

2 

1 

_ 

_ 

1 

82 

_ 

1 

10. 

10. 

37 

5 

_ 

5 

_ 

1 

2 

1 

_ 

1 

3 

1 

1 

1 

1 

_ 

ti 

_ 

_ 

_ 

_ 

_ 

1 

2. 

2. 

38 

3 

- 

S 

_ 

_ 

1 

2 

_ 

_ 

S 

_ 

- 

2 

_ 

_ 

1 

2 

37* 

2 

53* 

- 

1 

6. 

6. 

39 

5 

2 

3 

2 

_ 

8 

- 

- 

_ 

4 

_ 

_ 

1 

1 

_ 

;i 

- 

_ 

1 

59„ 
92| 

801 

- 

1 

4. 

4. 

40 

17 

3 

8 

14 
49 

4 
9 

2 
5 

26 

2 
10 

1 

2 
6 

11 
37 

1 
5 

4 
5 

6 
23 

2 

1 
9 

10 

23 

2 

51| 
454 

5 

2 

3 
14 

6  66 
5.85 

6.66 

Totals.. 

7 

14 

5.12 

Note.  —  Included  in  fractures  of  the  neck,  are:  1  intra-capsular  at  89  years,  and  5  extra- 
capsular,—  1  at  32,  and  4  at  40  years.  In  addition  to  the  simple  and  compound,  there  are:  1 
simple  comminuted  and  complicated  at  36  years  ;  5  simple  complicated,  —  1  at  32,  3  at  35,  and 
1  at  36  years  :  1  compound  comminuted  at  32  years ;  1  compound  comminuted  and  complicated 
at  39  years  ;  2  compound  complicated,  —  1  at  32,  and  1  at  40  years. 


42 

43 

44 

45 

46 

47 


49... 
50... 


Totals.  4315  27   8   3 19   5   2   6   80     3   6  21' 1   516 


1 
1 

III 

li  1 


49 


432 


358 


65 


103 


14 


7.4 


12. 
8., 
6,16 


7.28  6.8 


Note. — Included  in  fractures  of  the  neck,  there  are  :  2  intra-capsular,  —  1  at  48,  and  1  at  50 
years  ;  and  3  extra-capsular,  —  2  at  45,  and  1  at  50  years.  In  addition  to  simple  and  compound: 
1  simple  complicated  at  49  years  ;  1  compound  complicated  at  44  years  ;  2  comminuted,  other 
characters  not  stated,  1  at  47,  and  1  at  50  years.     One  ease  at  46  years,  sex  not  recorded. 


51 

2 

1 

1 

_ 

2 

_ 

_ 

_ 

_ 

1 

_ 

1 

1 

_ 

_ 

1 

1 

102 

1 

104 

_ 

1 

8. 

8. 

52 

4 

_ 

4 

1 

_ 

1 

2 

- 

_ 

1 

1 

1 

2 

_ 

1 

1 

- 

- 

_ 

_ 

- 

2 

5 

5. 

54 

1 

_ 

1 

_ 

- 

1 

_ 

_ 

- 

1 

- 

_ 

1 

_ 

_ 

- 

1 

44 

_ 

_ 

- 

1 

1. 

1. 

55 

5 

2 

2 

1 

1 

_ 

2 

_ 

1 

2 

1 

2 

_ 

1 

2 

2 

_ 

_ 

1 

63 

_ 

_ 

_ 

_ 

56 

2 

1 

1 

2 

_ 

_ 

_ 

_ 

_ 

2 

_ 

_ 

2 

_ 

_ 

_ 

_ 

_ 

2 

7U 

_ 

1 

8. 

8. 

57 

1 

- 

1 

- 

_ 

1 

_ 

_ 

_ 

_ 

_ 

_ 

1 

_ 

_ 

_ 

1 

35 

_ 

- 

_ 

_ 

_ 

_ 

58 

3 

_ 

3 

1 

_ 

1 

1 

_ 

- 

2 

- 

1 

2 

- 

- 

1 

- 

- 

- 

- 

- 

2 

4. 

4. 

59 

4 

_ 

4 

_ 

2 

2 

_ 

_ 

_ 

4 

_ 

_ 

1 

_ 

_ 

3 

_ 

_ 

1 

75 

_ 

1 

12. 

12. 

60 

18 

6 

12 

9 

2 

0 

2 

~ 

- 

13 

- 

0 

6 

1 

1 

10 

- 

- 

4 

88 

1 

3 

4.66 

3.5 

Totali. 

40 

10 

29 

14 

7 

11 

7 

- 

1 

26 

2 

10 

16 

2 

4 

18 

3 

67 

9 

818 

9 

1 

11 

5.54 

5.0 

Note.  —  One  case,  in  which  sex  is  not  recorded,  at  .55  years;  intra-capsular  fractures,  3, — 
1  at  .55,  and  2  at  60  years;  extra-capsular,  1  at  —  years  ;  simple  complicated,  1  at  57  years  ; 
comminuted,  other  characters  not  mentioned,  1  at  52  years. 


470  CIVIL  MALPRACTICE. 

TABLE  C,  BA.VING  EEFERENCE  TO  AGE  [Continued) 


Sex. 

Point  of 
Fracture. 

Character 

of 
Fracture. 

Result  as 
to  Cure. 

Time  the 
splint  re- 
mained on. 

Time  the 
patient 
was  in 

hospital. 

Shorl-ening 
in  eighths  of 
inch. 

an 

■6 

■6 

c 

o 

Age  in 

S" 

t 

to 

p 

so 

a 

Years. 

■a 

■a 

"S 

2 

■a 
o 

2 

■s 

■6 

■c-a 

3   o 
—1  c 

■•3 -a 
5§ 

■^ 

a 

■rt 

c 

S 

o 

•a 

Sr, 

n  "^ 

o 

't  "^ 

t-  '  >J 

^ 

6 

o 

cS 

-Jis'li 

t»-i 

?n 

o 

S 

§,x: 

^"^ 

a 

1^ 

§" 

S  .z: 

a.:-"  1  S  ;  S 

C  1  c  i  aj 

o 

o 

Z 

"i^ 

z 

P  S 

J 

o 

Z 

t/2 

o 

z. 

3 

Z 

P 

Z 

Z 

> 
< 

z 

5 

^ 

CO 

^ 

<i 

61 

1 

_ 

1 

1 

_   _ 

_ 

_ 

_ 

1 

_ 

- 

_ 

_ 

_ 

1 

_ 

_ 

_ 

_ 

- 

- 

- 

- 

62 

4 

_ 

4 

4 

_   _ 

_ 

- 

_ 

3 

_ 

1 

2 

_ 

1 

1 

- 

- 

2 

104 

- 

2 

7. 

V. 

63 

9 

_ 

2 

1 

1 

_ 

_ 

_ 

_ 

_ 

1 

1 

_ 

1 

_ 

_, 

_ 

1 

101 

- 

1 

24. 

24. 

64 

? 

1 

1 

1 

1 

_ 

_ 

_ 

1 

_ 

1 

_ 

_ 

- 

2 

_ 

_ 

1 

108 

- 

- 

- 

- 

65 

n 

S 

fi 

5 

1 

2 

_ 

_ 

f 

6 

1 

•e 

4 

1 

1 

5 

1 

49 

2 

66A 

- 

2 

4. 

4. 

67 

9 

2 

1 

_ 

1 

_ 

_ 

1 

_ 

1 

1 

_ 

- 

1 

_ 

_ 

1 

49 

- 

1 

4. 

4. 

68 

1 

1 

_ 

_ 

_ 

_ 

-!  - 

1 

1 

- 

_ 

- 

- 

- 

1 

- 

- 

- 

- 

- 

- 

- 

- 

70 

5 

28 

5'  - 

2 
15 

2]  1 

1 

4 

3 

16 

1 

2 
9 

2 
10 

1 

3 

3 

- 

49 

1 

21 
63| 

1 

1 

6 

- 

- 

Totals. 

12 

16 

5 

4 

- 

~ 

1 

8 

8.33 

7.14 

Note.  —  Intra-capsular  fractures,  5,  —  1  at  62,  1  at  64,  2  at  65,  and  1  at  67  years ;  extra-cap- 
snlar,  4,  — 1  at  62,  1  at  63,  1  at  65,  and  1  at  70  years.  In  addition  to  simple  and  compound  : 
—  simple  complicated,  1  at  63  years  ;  compound  complicated,  1  at  65  years. 


72 

2 

2 

1 

1 

1 

1 

1 

_ 

_ 

73 

1 

1 

_ 

_ 

_ 

_ 

_ 

1 

_ 

- 

_ 

- 

1 

- 

- 

- 

- 

- 

- 

- 

74 

2 

1 

1 

1 

_ 

_ 

- 

_ 

2 

- 

- 

1 

1 

- 

- 

- 

2 

45 

- 

1 

2. 

2. 

76 

1 

_ 

1 

_ 

_ 

_ 

- 

- 

_ 

- 

1 

- 

- 

1 

- 

- 

- 

- 

- 

- 

- 

77 

1 

1 

_ 

_ 

_ 

- 

- 

- 

1 

- 

- 

1 

- 

- 

- 

- 

- 

- 

- 

- 

1 

8. 

8. 

79 

2 

2 

- 

2 

- 

- 

- 

- 

- 

- 

- 

- 

- 

- 

2 

- 

- 

- 

-=■ 

- 

- 

- 

- 

Totals. 

9 

5 

4 

7 

2 

- 

- 

- 

- 

5 

- 

2 

2 

1 

4 

2 

- 

- 

2 

45  j    - 

2 

5. 

5. 

Note.  —  Included  in  fractures  of  the  neck  are :  3  intra-capsular,  at  73,  74,  and  79  years  respec- 
tively .;  1  extra-capsular  at  79  years.    There  are  2  simple  complicated  fractures  at  79  years. 


85 

87 

90 

1 
1 

1 

3 

1 

1 

2 

1 

1 

1 

1 

- 

1 

1 

2 

- 

- 

- 

1 

1 

— 

- 

- 

- 

1 

1 

1 

- 

- 

- 

- 

- 

- 

- 

- 

Totals. 

- 

- 

- 

2 

1 

- 

- 

- 

- 

- 

- 

- 

Note.  — In  addition  to  the  simple  fracture  there  are  :  1  simple  complicated  at  87  year?,  and  1 
compound  comminuted  at  90  years. 

There  are  four  cases  recorded  in  which  the  age  is  not  stated — 1  female  and  3  male;  2  fract- 
ures at  the  middle  third,  and  2  point  not  stated  ;  all  were  simple.  Union  was  recorded  in  1 
case ;  death  in  1,  and  in  two  cases  result  not  stated.    Shortening  recorded  in  1  case  of  2  eighths. 


PROGNOSIS  IN  FRACTURES.  471 


PRIMARY  "IMMOVABLE  MOVABLE"  DRESSINGS. 

(^Starch  handage^  Seutin,  1834 ;  Dextrine  bandage^  Vel- 
peau,  1837  ;  Plaster  of  Paris  handage^  Mathiesen  1852.) 

In  late  trials  for  Malpractice  we  begin  to  see  references 
made  to  Plaster  of  Paris,  the  successor  of  the  starch  and 
dextrine  dressings,  used  as  early  as  1834,  and  which  have 
been  held  in  more  or  less  favor  ever  since.  We  hear  in  con- 
nection with  these  suits  such  remarks  as  these  :  "  I  think 
Plaster  of  Paris  would  have  given  a  better  result ;  "  "  Plas- 
ter of  Paris  is  my  hobby  ;  "  "  Plaster  of  Paris  is  the  best 
form  of  dressing,"  &c.,  &c. 

Notable  among  surgeons,  whose  opinions  have  great  weight 
in  the  profession  Professor  L.  A.  Sayre  extols  it  highly, 
and  through  his  courtesy  I  am  permitted  to  present  his  re- 
port in  full,  accompanied  by  the  tables  prepared  by  Dr.  Van 
Wagenen. 

I  have  omitted  from  the  tables  the  record  of  fractures  of 
OS  calcis,  metacarpal  and  metatarsal  bones,  ribs,  rupture  of 
ligaments  and  tables  of  "  Averages."  The  figures  under 
"  number  of  splints  "  indicate  the  first,  second,  and  third 
applications  of  the  plaster.  The  dates  of  these  applications 
are  also  omitted. 

In  Professor  Sayre's  hands  good  results  would  follow,  per- 
haps, any  form  of  dressing ;  but  it  must  be  remembered  he  is 
now  writing  at  the  close  of  a  long  hospital  practice,  and  is 
always  able  to  command  skilled  assistance  or  all  the  mechan- 
ical paraphernalia  pertaining  to  a  hospital,  while  the  "  ordi- 
nary "  surgeon,  be  his  skill  what  it  may,  has  to  depend  upon 
his  own  resources  entirely,  fortunate  if  he  can  have  one  or 
two  intelligent  friends  present  to  witness  what  he  does  and 
what  he  does  not  do,  and  to  hear  his  reasons  for  commissions 
and  omissions. 

Table  B  is  Professor  Sayre's  Report  to  the  American 
Medical  Association,  published  in  the  Transactions  for  1874, 
and  is  here  presented  in  full. 


472  CIVIL  MALPEACTICE. 

Table  C  is  essentially  the  one  accompanying  Professor 
Hamilton's  paper  on  "  The  Treatment  of  Fractures  of  the 
Femur  by  Immovable  Apparatus,"  published  in  the  New- 
York  Med.  Jour,  for  Aug.  1874. 

Table  D  is  compiled  from  the  same  paper,  and  shows 
result  of  treatment  without  Plaster  of  Paris. 

The  application  of  these  forms  of  primary  dressing  re- 
quires large  judgment,  inasmuch  as  it  is  likely  to  be  fol- 
lowed by  the  same  bad  results  that  so  frequently  follow  the 
use  of  the  "  primary  "  or  "initial"  bandage.  It  is  not  yet 
the  sine  qua  non  so  long  and  so  anxiously  looked  for  by  sur- 
geons in  the  treatment  of  fractures.  The  other  forms  of  the 
so  called  "  immovable  "  dressing  are  just  as  objectionable, 
and  for  the  same  reasons.  As  a  secondary  dressing,  after 
the  inflammatory  dangers  have  passed,  and  as  a  dressing  for 
compound  fractures,  it  is  highly  satisfactory  ;  and  for  hospital 
practice  where  it  can  be  every  few  minutes  under  the  eye  of 
the  house  surgeon,  or  of  nurses  familiar  with  the  care  of 
these  injuries,  it  may  be  followed  hj  good  results.  The  sur- 
geon who  applies  it  to  his  patient  ten  or  fifteen  miles  away, 
applies  it  at  a  great  peril  to  his  patient  and —  himself. 

Dr.  Bryant  (Med.  Record,  Sept.  15,  1871)  says  :  "  In  com- 
pound fractures  it  is  equal,  if  not  superior,  to  any  other  kind 
of  dressing."  He  says  further :  "  You  are  first  to  consider 
the  amount  of  swelling  in,  or  liable  to  occur  in,  the  limb. 
....  If  then  little  or  no  swelling  exists  or  is  liable  to  occur, 
apply  the  splint  (Plaster  of  Paris)  at  once ;  but  if  the  limb 
is  much  swollen,  or  in  danger  of  becoming  so,  apply  Buck's 
Extension,  conjoined  with  cooling  lotions,  to  the  part  injured. 
The  safer  method  is,  in  all  cases,  to  treat  in  this  manner  until 
the  swelling  disappears." 

Dr.  S.  B.  St.  John,  of  New  York,  in  a  paper  published  in 
Am.  Jour.  Med.  Sci.,  July,  1872,  gives  as  its  special  advan- 
tages, "  Perfect  coaptation  to  irregularities  of  the  limb,  and 
as  result  of  this  :  Little  tendency  to  displacement  of  splints  ; 
complete  fixation  of  fragments;  no  injurious  pressure  over 
prominences ;    uniform  compression ;    giving  less  trouble  to 


PROGNOSIS  IN  FRACTURES.  473 

surgeon  ;  freedom  of  patient  to  go  on  crutches  or  otherwise  ; 
less  irritation ;  less  extravasation  of  blood  ;  less  swelling  ;  less 
liability  of  excoriation  ;  muscular  rest ;  diminution  of  spasm, 
thus  removing  one  cause  of  displacement ;  preventing  swelling 
and  lessening  it  when  it  exists."  See  his  valuable  paper  for 
shortening.  Like  so  many  others,  he  says  little  or  nothing 
about  loss  of  function  and  deformity.  The  advantages  he 
presents  are  highly  desirable,  but  the  records  of  gangrene  pre- 
sented in  the  same  connection  militate,  somewhat,  against 
his  conclusions. 

The  application  of  this  form  of  splint  is  certainly  not  less 
trouble  to  the  surgeon,  for  in  many  cases  it  seems  necessary 
to  apply  it  three  or  four  times.  According  to  Prof.  Sayre's 
Tables  it  had  frequently  to  be  ap|)lied  the  third  time  ;  but 
trouble  to  the  surgeon,  however  much  it  should  be  guarded 
against,  is  a  secondary  matter ;  a  good  result  to  the  patient 
is  the  first  thing  to  be  looked  after.  Again,  anassthetics 
were  frequently  used  in  the  cases  recorded  in  the  Bellevue 
Hospital  Tables.  This  requires  the  assumption  on  the  part 
of  the  surgeon, of  another  responsibility,  which  is  a  country 
practice  is  not  to  be  recklessly  entered  upon  without  skilled 
assistants,  and  these  are  an  impossibility  in  such  a  prac- 
tice. 

Dr.  Sands,  New  York  Med.  Jour.,  June,  1871,  extols  the 
plaster  dressing,  but  his  tables  do  not  show  entire  freedom 
from  shortening  and  deformity,  any  more  than  the  rest. 


TABLE    B. 

REPORT  ON  FRACTURES, 
BY  LEWIS  A.  SAYRE,  M.  D. 

PROFESSOR   OF    ORTHOPEDIC    SURGERY    AND    CLINICAL    SURGERY,    BELLEVUE    HOSPITAL    MEDICAL   COL- 
LEGE,   SURGEON   TO    BELLEVUE   HOSPITAL,    ETC.,  ETC.,  ETC. 

There  is  such  a  difference  of  opinion  in  the  profession  in 
regard  to  the  proper  treatment  of  fractures,  and  also  as  to 
the  prognosis  in  such  accidents,  that  it  seems  to  me  a  proper 


474  CIVIL   MALPRACTICE. 

subject  to  bring  before  the  association  for  discussion,  and  see 
if,  with  the  advantages  we  now  have  of  ansesthetics,  and  also 
the  numerous  methods  that  have  lately  been  adopted  of  re- 
taining the  bones  in  position,  we  cannot  settle  upon  some 
fixed  plan  of  treatment,  that  shall  be  of  universal  applica- 
tion, and  that  shall  give  better  average  results  than  hereto- 
fore we  have  been  taught  to  consider  as  satisfactory. 

When  I  was  a  student  we  were  taught  that  as  the  bones 
did  not  commence  to  unite  until  after  the  ninth  day,  there 
was  no  absolute  necessity  to  have  them  accurately  adjusted 
until  after  this  period  ;  that  all  that  was  necessary  during 
these  nine  days  was  to  support  the  fractured  limb  on  pillows 
in  as  good  a  position  as  was  convenient,  to  make  the  patient 
in  this  way  as  comfortable  as  possible,  and  to  combat  inflam- 
mation with  evaporating  lotions,  &c.,  &c.,  and  to  wait  until 
the  inflammation  and  swelling  of  the  soft  parts  around  the 
seat  of  fracture  had  subsided  before  we  "  set  "  the  bone. 

This  was  the  universal  practice  at  the  New  York  Hospital 
at  that  time,  and  of  all  the  physicians  with  whom  I  was  ac- 
quainted. I  am  sorry  to  say  that  I  have  heard  of  two  cases 
treated  in  this  way  in  this  city,  within  the  past  few  months, 
and  by  gentlemen  of  position  in  the  profession. 

The  first  case  of  fracture  that  I  saw  after  commencing 
practice  early  taught  me  the  error  of  this  doctrine,  and  I 
have  never  followed  it  since.  I  now  always  adjust  a  fracture 
as  soon  as  I  see  it  (if  it  is  possible  to  do  so),  whether  it  be 
simple,  compound,  comminuted,  or  complicated,  and  then  try 
to  keep  it  in  position,  if  possible.  Of  course  I  do  not  include 
in  this  statement  cases  in  which  amputation  is  the  only 
remedy. 

As  the  result  of  my  experience  I  would  lay  it  down  as  a 
rule,  that  it  is  our  duty  to  replace  and  accurately  adjust  all 
cases  of  fracture,  which  do  not  require  amputation,  immedi- 
ately after  the  occurrence  of  the  fracture,  or  as  soon  as  we 
are  called  to  see  it,  whether  it  be  one  hour  or  two  days  after 
the  accident.  If  it  is  replaced  immediately  after  the  accident, 
the  swelling  of  the  soft  parts  will  not  take  place  to  the  same 


PROGNOSIS  IN  FRACTURES.  475 

extent  as  when  left  distorted ;  and  in  many  cases  that  I  have 
seen,  no  swelling  at  all  has  occurred. 

The  bones  are  merely  the  framework  to  keep  the  body  in 
shape  and  form.  Each  man's  bones,  whether  tall  or  short, 
have  muscles,  blood-vessels,  nerves,  and  connecting  tissues 
perfectly  to  correspond,  if  he  is  not  deformed.  When  the 
bone  is  fractured,  the  muscles  traversing  the  fractured  spot, 
by  their  contraction,  produce  shortening  and  distortion.  By 
the  contraction  of  the  muscles  the  blood-vessels  are  necessarily 
looped  in  folds  or  zigzagged,  thereby  preventing  free  circula- 
tion through  them. 

Arteries  having  the  vis  a  tergo  from  the  heart's  contrac- 
tion, together  with  the  contractility  of  their  own  muscular 
coat,  may  have  power  to  force  the  blood  through  these  ob- 
structed channels  to  the  portions  of  the  limb  beyond  the  fract- 
ure ;  but  the  veins,  which  are  deprived  of  this  propelling 
power,  cannot  return  the  blood  through  these  angular  distor- 
tions. Hence  the  oedema  and  effusion  into  the  cellular  tissue 
surrounding  fractured  bones  that  have  not  been  immediately 
replaced  in  their  normal  position.  Consequently  the  truth 
of  my  first  remark,  as  to  the  necessity  of  immediate  reduc- 
tion of  the  fractures,  must  be  apparent. 

The  evidences  of  fracture,  as  taught  by  all  authorities,  such 
as  shortening,  deformity,  false  point  of  motion,  crepitus,  &c., 
are  so  well  established  as  to  require  no  discussion. 

The  method  of  reduction  and  the  time  when  it  should  be 
done,  being  moot  questions,  are  deserving  of  consideration. 

In  fractures  of  the  cranium,  the  plan  of  treatment  is  so 
well  established  as  to  require  no  additional  amplification. 

In  fractures  of  the  spine,  reclining  in  a  horizontal  posture 
and  a  state  of  total  rest,  upon  an  air  or  water  bed  (air  bed 
being  preferable),  with  some  fixed  apparatus,  such  as  Plaster 
of  Paris,  dextrine,  the  silicates,  celluloid,  albumen,  and  liour, 
&c.,  to  prevent  possibility  of  motion,  is  all  that  is  requisite. 

For  fractures  of  the  upper  and  lower  jaw,  the  plan  of  treat- 
ment and  mechanical  contrivances  employed  by  Dr.  N.  Kings- 
ley,  dental  surgeon,  preclude  the  necessity  of  further  ampli- 
fication. 


476  CIVIL   MALPRACTICE. 

In  cases  of  fractured  ribs,  a  broad  band  of  adhesive  plaster 
or  bandage  around  the  body,  to  hold  the  parts  steady,  is  all 
that  is  necessary. 

Fractures  of  the  long  bones  require  that  extension  and 
counter-extension,  under  the  influence  of  chloroform,  or  other 
ansesthetic,  if  necessary,  should  be  made  in  a  proper  direc- 
tion, until  perfect  accuracy  of  adjustment  is  obtained,  and 
after  this,  retention  and  fixation  in  this  normal  coyidition  un- 
til consolidation. 

By  accuracy  of  adjustment  I  mean  the  perfectly  normal 
condition  of  the  bone  as  to  length  and  position.  When  the 
extension  and  counter-extension  have  been  properly  made, 
the  muscles  and  other  tissues  surrounding  the  bones  will 
necessarily  and  positively  force  the  fractured  extremities  into 
their  natural  position,  as  above  described,  unless  some  for- 
eign body,  as  a  shred  of  muscle  or  connective  tissue,  has  got 
between  the  fragments. 

All  extension  beyond  this  point  of  perfect  accuracy  of  ad- 
justment is  unnecessary  and  injurious ;  for,  being  abnormal, 
it  excites  reflex  contractions.  Hence  the  objection  to  con- 
tinued extension,  which  keeps  up  reflex  irritation,  or  else  by 
paralyzing  the  muscles  allows  of  elongation,  and  consequently 
frequently  results  in  non-union. 

All  extension  short  of  that  necessary  to  this  perfect  adjust- 
ment is  insufficient,  leaving  the  extremities  of  the  bone  as 
sources  of  irritation,  and  causing  pain  and  muscular  contrac- 
tions as  well  as  leaving  the  vessels  in  a  looped  position, 
causing  the  oedema  heretofore  described.  The  nerves,  also, 
being  in  an  abnormal  position,  are  additional  sources  of 
irritation. 

When  the  bone  (whatever  bone  it  may  be)  is  thus  placed 
and  retained  in  its  normal  position,  tlie  patient  is  free  from 
pain,  and  all  the  functions  of  the  limb  are  as  well  performed, 
in  cases  of  simple  fracture,  and  the  recovery,  in  a  healthy 
constitution,  will  be  as  perfect  and  complete,  with  normal 
length,  without  deformity,  as  if  no  fracture  had  occurred.  If 
the  limb  has  been  extended  to  its  normal  length,  the  bones 


PROGNOSIS  IN  FRACTURES.  477 

must  necessarily  be  accurately  adjusted  by  the  surrounding 
tissues.  If  this  position,  therefore,  be  positively  maintained, 
shortening  cannot  by  any  means  take  place,  but  rather  a 
lengthening  to  the  extent  of  the  plastic  material  effused  be- 
tween the  bones  that  joins  the  fractured  extremities 

The  plan  that  has  here  been  briefly  sketched  I  believe  to 
be  of  universal  application,  and  the  surgeon  w^ho  can  the 
most  accurately  put  it  into  actual  practice  will  have  the  best 
results  in  the  treatment  of  fractures.  In  a  report  of  this  nat- 
ure, which  is  simply  intended  to  bring  up  the  subject  for 
discussion,  it  would  be  altogether  out  of  place  to  go  into  the 
details  of  the  treatment  of  fractures  of  each  different  bone, 
as  it  would  make  a  paper  altogether  too  voluminous  for  pub- 
lication in  the  Transactions  of  the  Association.  But  I  will 
simply  supplement  it  by  a  table  of  the  fractures  treated  in 
Bellevue  Hospital  in  the  year  1873,  which  has  been  compiled 
from  the  hospital  records  by  Dr.  Van  Wagenen,  late  house 
surgeon  to  Bellevue  Hospital. 

It  will  be  particularly  observed  in  studying  these  tables 
that  the  three  -cases  of  greatest  shortening,  in  which  the  per- 
manent dressing  of  Plaster  of  Paris  was  applied,  were  the 
three  cases  that  were  necessarily  confined  to  their  bed  on  ac- 
count of  other  complications,  showing  that  if  this  dressing 
is  the  one  preferred  by  the  surgeon,  it  is  better  to  keep  his 
patient  up  and  walking  abovit  occasionally,  as  the  limb  will 
then  fill  with  blood  and  retain  its  accuracy  of  fit  to  the 
plaster  casing  ;  whereas  the  horizontal  posture  allows  of  more 
shrinkage,  and  the  extension  not  being  accurately  retained 
necessitates  the  more  frequent  change  of  the  dressings. 


478  CIVIL  MALPKACTICE. 


A    RECORD    OF   FRACTURES    TREATED    AT    BELLEVUE 
HOSPITAL   WITH   PLASTER   PARIS   APPARATUS, 

From  April  1,  1872,  to  April  1,  1873, 

INCLUDING   ONLY   THOSE    CASES    OF    WHICH   A    THOROUGH   RECORD 
COULD    BE    FOUND. 

TABULATED     BY 

GEO.  A.  VAN  WAGENEN,  M.  D., 
House  Surgeon,  Bellevue  Hospital,  October,  1872 — April,  1873. 


The  record  of  fracture  of  femur  is  full,  including  almost 
all  the  cases  treated,  while  the  record  of  results  in  less  im- 
portant cases  (as  fractures  of  the  leg)  has  been  neglected  in 
many  instances.  Many  were  simply  marked  "  cured^''  with 
no  statement  as  to  time,  number  of  splints,  and  condition  of 
the  limb  after  treatment,  &c.  These  were  all  kejbcted  in 
the  inclosed  tables. 

G.  A.  V.  W. 


PEOGNOSIS  IN  FEACTUEES. 


479 


t^ 

i.2 

■  >-    1 

^, 

0 

1 

p 

M 

£ 

P< 

u 

a 

c3 

p. 

>>  '^ 

ci 

0 

a 

2  -a 
1=  c 

p. 

6 

p. 

^ 

^•a 

1 

1 

1 

fa 

is      1 

a 

1 

1 

1 

^•3 

III 

•a 

3 

ci 

0 

0 

0 
a 
0 

be 

a 
1 

1° 

d 

3 

1 

a 

-o  -tS 

:3   S 

ts 

3; 

ro 

Ti 

cog 

SU 

d 

1 

0 

II 

§• 

^ 

tc  5^  c 

V-  0 

■a 

9 

C3 

t,  0 

■-a 
■a 

0  0 

■^  oi 

r-l 

(§ 

1 

1 

1 

1 

1 

.2  3 
§1 

'm  a< 

•a_3  _ 

0  a  M 
—  5a 

p. 

0 
"3 
_  a 

0 
1 

B   3 

'5.>, 

%-  TI 

0  s 
a  « 

-id 
&"2-a 

1 

CO  tc 

X  ^ 

^  w  ^ 

■a 

§.§. 

3 

-e  V>  0 

a 

"  ° S^-p 

1^^ 

o.S 

^l-g 

3 
■a 

0.  2 
C33 

^  a  c^i  "3  3 

ffl 

« 

n 

B 

Ci 

n 

o 

c 

0     ti 

^ 

^ 

6 

tj  t-  ja 

0-'   0 

aj 

;^ 

•oijgq^saeav 

□ 
o 

.g 

0      -d 

^ 

0 

a 

J  J3   0 

2  a 

a  0 

a 
0 

£ 

1 

1 

iz; 

a 

Z     a 

a 

a 

§, 

hS^ 

z;z 

^ 

P^ 

a 

0 

60 

a 

to 

a 

ti 

bi) 

so 

d 
.-  0 

d  'm 

tb 

^- 

tJO 

'S 

■3 

'a 

_a 
"3 

a 
■3 

•3  0 
g  P- 

"5 

^ 

a 

0       -t^ 

^• 

a 

c 

tj 

0-2   g3 

0  3 

-S 

t^ 

o 

'a 

3> 

•S    ° 

0 

'5 

-^ 

^ 

0 

0 

0 

5§ 

« 

0 
.d 

J2   0   ^ 

- 

0 

a" 
0 

1 

•3.2 

;3 

S3 

^ 

li^ 

•2 II 

a 

_a 

0  02  a  0 

a  a 

u  a  0 

a 

0 

a 

0 

3 

""3 

.3 

a 

.a  s  §) 

•s^nixds 

^ 

i-H 

l-H            T-l 

r-l 

c^ 

^ 

t-HC-l 

^ 

1-1 

^ 

i-H 

^ 

JO    jaq 

cnnfj 

t^ 

^ 

J 

<2 

.2> 

■3 

3 

0 

i  1 

^ 

aj 

^- 

M 

OQ 

"m 

a 

^ 

2 

^ 

^ 

.2 

.^S 

o 

d 

.H 

3 

a'l 

*3 

1 

u 

1 

(S 

0 

ffl 

& 

S 

a 

^   ;:^ 

t<^ 

Ho 

0 

0 

OT 

^^ 

0 

=3 

■0 

03 

3         ° 

0 

a  — 

CO 

CO 

CO 

tH 

<r> 

OJ 

o 

C3 

c3 

-S     "3 

°'3 

c3 

ci 

c3 

c3 

ci 

b 

fa 

w       fa 

'&. 

fa 

fa 

fa 

fa 

fa 

fa 

fa 

_^ 

? 

i~ 

^ 

T3 

0 

0 

bl=^ 

J3 

*" 

0 

ja 

bc-*^ 

■a 

p 

.Is 

*«   >> 

^      '^ 

^ 

a 

0 

b 

C  -t? 

> 

;h 

2      0 

c 

a 

0 

0 

—  ^ 

li 

"3 

0 

"2    -S 

J5 

5 

>> 

.J 
a  J 

1  1 

J3 

1 

1 

l-i 

0 

.d 

c 

ja 

3§ 

.u    C 

CO  aj 

c 

a      a 

.5 

*S- 

a 

ci  "- 

P 

ci 

rH 

a 

P 

a 

<2-S- 

gi-ted 

Ptt- 

u 

-*< 

.^«n 

H 

W-l- 

f-^     t— < 

0 

0 

H3J 

"^ 

J3 

ca         'ij 

.a 

e 

§ 

h      ,    b 

? 

0 

0 

0 

■a 
S7 

£■■=  °"s 

1 

0 

ci 

1 

CS   C5 

•6 

ci 

-a' 

6: 

43 
ci 

o 

.2 

;; 

0 

.  0  0  a  0 
0 .5^.25 

3 

3 

■s-s 

3 

J3 
0 

3 

0 

•2 

0) 

:P*^  t3  -^  '3 

0 

«  0  '^  0  .;5 

■a 

a 

fl 

■a 

73  -a 

•a 

'a 

^     X 

■a 

5 
1-5 

0 

^_ 

3  =  a  =  3 

1-5 "TS 

IM 

i! 

13  « 

fe 
3 

T3 

•a 

_i_ 

|S 

-a 

•33V 

CO 

t- 

05        0 

iO 

to 

05 

§3^ 

to 

CO 

OT 

to 

b- 

r-< 

tH 

(N 

(M 

<M 

CO 

CO 

•xag 

s 

s 

a   s 

s 

fa 

a' 

Sg 

s 

s 

fa 

s 

S 

■ON 

r-4 

(M 

ro     •* 

10 

53 

t- 

00  03 

0 

I-H 

CI 

CO 

tX 

M 

i-H 

480 


CIVIL   MALPRACTICE. 


2 

and 

itch. 

,s  re- 
d. 

t4        §> 

4 

—  iJ      0 

J2 
CD 

li  I 

1       1 

ll 

= -"S  -?  i  = 

—   ^   e   a:  ^   » 

°JII  ' 

1 

'.acq 

1 

a 
0 

1 

5  ?  s  as 

P.rH 

Is 

« 

P-  i   ^   ^  -2   g 

g-.S'^E 

i.S 

a 

IX  "^  -2  "i^  'c  "3 

g  ic-^-^  0 

s  m 

1        1 

2 
l| 

fl  1 1  :=  f 

■S  =  c  .2  .-3 

?     a  "^  s 

■J  3  9 .5  -2 

1 

1'^ 

1  Ts-a 

1  «=- 

Q 

<          H 

Cj                 &^ 

(2 

'i 

^      ^      X       ^'                C                tH 

S                ,          S   3t< 

6  ^■ 

tj 

■oi?9ti;sa8av 

a 

.a  -g  g  j:     ja     j3 
a  ■=  s  a    a    a 

1                         l|- 

"S  3 

0  z 

1  ' 
a 

fl 

£f 

60=3 

M      to     .5,, 

.t    11  il 

u). 

bC.S   3, 

s 

.2      5=^ 
3     S-^ 

^  ^1 

■3 

1 
0 

-••5 

d      p      CM 
■5     "3     -2  a 

.•2       .-          -aS 
S        -5     .a      2  -gi 

■g         ^^cS 

■3 

0 

ja 

3   3 
11  cJ 

S      n  c 

S  a 

g        1     .H     --^ 

3   2              c   3   2   3   bo 

"3  3 's  0 

fl      .-  a  ^y^ 

4^  3             .-.a  .3   3 '5 

a 

.9  •-  3  <£ 

^fel        M» 

r-t 

&              r,-       -^      -= 

C-l               .-1        — ^ 

-f^ 

.-tei^v 

•s?Ti![ds 

rH        i-H 

^ 

IM             rH        «        rH 

rH               rH        rH 

rHrH 

JO  J3qran^ 

■^                ^      a 

&> 

0                         «         0 

S                          to 

to                .        3 

3 

-d 

^^                        ro        rt 

■|    i  1 

TS 

O 

a 

-as 

3 

a 

"3  a 

a 
g 
to 

1     1   ^,-! 

9        b,    >> 
&          to     ^ 

1 

3      • 
go 

a;>2 

3 

0 

1       ""If 

■§        g    -g 

0  c^ 

=3 

a               S  c  d 
1               ^°l 

zi          —      3 

"3  Is 

[=<  i^ 

|4 

tf              0     rt 

fe<              &        W3 

fefa 

S     .  cS 

ci 

55 

5  S  S 

a 

h     -*j 

.iJ 

.^ 

1.^ 

2-§if  . 

X          O    ho 

0 

1          1      -     1 

■{;>>"£      0 

1 

il 

^•2 

m  "^  ■?  .S 
.3  _g  J3  -3 

1     ■§ 

1  3     1     "^ 

J3   m 

.3  ja 

0      a 

.9-     1     i 

fi 

■£  ~  .1  ^ 

a 

.9     ■" 

.9.9 

(M        ^ 

r—i 

CT         r-i 

-!M            rH        ;5^ 

«-^i 

=^         d 

■^                              ■^ 

0         S 
■3     .   «J 

=. 

.a 

4^3 

a 
'o 

■IsS 

0  h  0  w 

TS 

.■2  ^       .     ■«  •«  .^ 

0 

3  " 

&.3     • 
«  tog 

•III 

■3 

S  -"        O,       3       3 

S.            1        -^3 

— "■: 

-Z         CO 

s 

1-5             &       i-s       g 

2  ° 

»— (  Eh 

•aSy 

CO        CO 

10 

10            -*       0       -# 

0         00 

in 

o-#. 

•^      Ttt 

Tj( 

■*            -*       -*i       0 

10             CD        CO 

<D 

■X8g 

s   s 

^ 

g      s   s   s 

S           Ph"      S 

S 

ss 

•ON 

lO      <r> 

^ 

CO                  C5          0          rH 

(M               CO        -^ 

»3 

CO  t^ 

rH        rH 

rH 

ri               rH        H        C-l 

C^               (M        <M 

(M 

(MN 

PROGNOSIS   m  FRACTURES. 


481 


o  ^  a  .S  ^  « 


p.  2  o  .£  3 

S^   fl        MS 
^  C  S  m  .2  c 

a    -" ^       a> 
2  3  a  «  >- 


■s§-l 


a 

p. 

a 

S  3  u 

O 

T) 

a 

a 

.d 

^ 
>< 

u 

1 

1 

a 

a 

o 

Tl 

a  ^  g 

Si 

°fl!« 

a 

« 

s 

3.2 

^ 

s 

p.  <"  t. 

a 

n! 

S 

Hi 

o 

X) 

si  & 

OS 

ill 

3 

O)      t 

I 

o 

« 
.Q 

S  a 

i 

M 

5 

a  P.  .a 

E= 

a 
o 

d 

S-aS 

^ 

s 

ja 

5  o  a 

o 

85 

6 

a 
'3 

•'  A 

a 

c3 

a 

a 

13 

a 

t-a 

M 

a 

o 
Si 

3 

o     _ 

^••g  a 

V 

o 

o       o 

ja 

,fl 

ai^a 

^ 

"E-S^- 

3.2 

o 

»  a  o  9 

o 

p.  p.—  p.^     1 

H«> 

IZi 

-(a 

^4c^ 

CTrH   ti 

■* 

sicqrH 

Ini-h 

» 

•-^ 

a; 

Is 

§§■5 

.^ 

S  g  s 

fe    "   C3 

o 
3 
t4 

.M 
S 

^§§ 

>^ 

'  ' 

s 

J= 

l-s 

.a  o  « 

a 

g 

J^ 

a 

o 

CO 

a^  a 

■d 

a 

3 

3 

tl 

^ 

« 

CO 

fcl 

.2-S& 

1 

I-H'-'S 

1 

1 

O 

®  .w  *r 

o>  o  o 

•.=  j3.a 

^    CO    CO 

o 

-a 

"O 

3 

a 

a 

^     S 
■S^'?; 

o 

„  3'a 

■S-o 

s 

■a 

§■-"§ 

ci  .« 

^ 

cja 

■*^ 

d 

Qi    — •      OJ 

S^ 

s 

3  2  t" 

fey 

•a 

a 

■a 

sa-i 

o 

o> 

CO 

r- 

00 

CO 

r-l 

^. 

s 

fe" 

a 

r~* 

(M 

CO 

•* 

tH 

%l 

la 

3^ 

ta 

^ 

t4 

■3 

^p. 

3 

t4 
1 

1 

1.§ 

?; 

a 

a-"  . 

<a 

It 

4^ 

^.§J 

a. 

a 

"2 
■-3 

l&l 

M 
S 

.a 

1 

o  »  a 

3 

•S  fe73- 

°  a.£ 

t-. 

§"■=  a 

J3 

<u  o  8 

■O 

.a-  ►- 

<i 

1 

1 



a 
o 

a 

§° 

o 

O 

53 

a 

■■ss 

P. 

O 

a 

a 

o 

a 

3 

J3 

a 

5 

g 

i 

o  a  t-  a 

o 

. . 

-h» 

s 

--H 

r-( 

- 

lO 

s^a 

i3  as 

g-2-a 

!3  la  " 

gg^S3 

"3 

S-I.HS 

^ 

fe 

g 

01 

a 
o 

-g 

s 

c3 

a 

a. 

g 

a 

® 

a 

a 

?, 

!*r 

o 

? 

1 

1 

V 

2 

t» 

a 

H 

a> 

33 

^ 

fe 

f-i 

g 

l-H 

N 

03 

31 


482 


CIVIL  MALPEACTICE. 


O 


1 

It  is  not  stated  why  last  splint  was  removed 
so  soon. 

•oi^aqasaeuv 

1           1       1 

Result. 

J    inch    separation  ; 
knee  rather  stifif. 

i  inch  separation; 

good  union. 
1  inch  separation. 

•sjniids 
JO  jaqomij 

N             0^       r-l 

9 
S 

Muscular  contract, 
in  attempting  to 
catch  himself. 

Fall.      ■  ' 

Shortening, 
deformity,  &c. 

J  inch  separation. 

1  inch  separation. 
J  inch  separation. 

3 

Transverse. 

Transverse. 
Transverse. 

•aSy 

O            lO       to 
03              CO        CO 

•xeg 

S               S        S 

•ON 

•*              lO        CD 

>. 

.a 

■« 

;>» 

ri 

i 

^ 

.la 

a 

o. 

ID 

A 

o 

a   . 

.2  W! 

p.fe 

c  « 

<J 

°a 

o  o 

tLS 

a  o 

.2t3 

IS 

lg 

m   p 

o  P 

iz; 

i-i 

«  p 

io" 

H  a 

.•=:  a 

°°  =«  a 

•TJ  -M    to 

Pa 

a 

.2  bi 

d.H 

JSis 

I-H 

■e 

.2 

a 

a 

S 

a 

o 

o 

lO 

s 

I-H 

eto£ 


».  ^  a 


E:cQ_2 


p-.S.S 

(Q     P.   O. 

ja  tE  m 

B 


wcq      i-H      ■* 


r3     -3      ^ 


3  .S  -i  .5  -2  .s  -2 


^fi     fa     S         S 


<IM       CO       ■* 


PEOGNOSIS  IN  FRACTURES. 


488 


.M-" 

Sfl 

^o 

EeB 

-E  ca 

fl  -s 

^:  1 

^  01  d 

"S.I 

P^g*, 

■3  f='H 

^^--   1 

^^a 

S^g 

o-a  fc 

«^- 

o^  ? 

"S-s^ 

0"%  1 

^  SS   I 

Sco"^ 

g-?-^ 

t.rt  0 

OJ^   m 

f»^ 

as  I 

•^^fe 

■"  S  m 

S  ?3 


•-a      c 


l§S.2 
j3  fccja  -.J 


Pw       FM 


!  a    -g  P. 


lH        OS  1-1 


o  ^ 

a  -s 

O   SB 


■S..O 


■s-i  ^ 


O  o  K 

a  2  c2 


J5  2"=! 


-*i 

lO 

0  s 
(a  2 

fci 

;^ 

ri 

!i< 

a 

«■ 

S 

0 

a>  a 

» 

fl 

£> 

a    _ 

3 

^ 

?,  >> 

^ 

.Q 

^1 

,n 

^ 

^is 

1 

■s  t^ 

1k 

H 

0 

"   0 

i 

.a 

1 

a  0 
a  to 

2 

A 

Ti^ 

^A 

1 

M 

Ph 

2 

% 

a 

■S? 

r^.y 

T-l 

•^/p, 

^ 

a 

r1 

s 

oW 

•s,.§ 

EH 

H 

^^ 

d 

Si 

§ 

H 

i 

12; 

a 

1 

a 

a 

a 

Pi 

s 

<UI 

P.  0 

'  - 

u 

*M 

-a 

a 

0 

P< 

C3 

.a 

-rt-i^ 

a 

<2 

sl 

tJiH 

a 

p< 

(S 

CO 

(M 

CO 

1-4 

_j 

a 

■a 

1 

1 

13 

d 

1§ 

a 

1 

o< 

1 

.Q 

0 

t-. 

t> 

a) 

U) 

^ 

T) 

T5 

■S 

a 

a 
■0 

a 

0 

a 

nt 

03 

.   P. 

TS  ,    t3   a, 

S 

5  ^ 

2I 

.a  S, 

u 

l-J 

id 

C-1 

05 

(M 

IM 

CO 

S 

a 

Ph 

I-l 

(M 

CO 

484 


CIVIL  MALPEACTICE. 


1 

i 

This  patient  ran  away  with  the  splints  on. 

•opaq^saeuy 

None. 
None. 

9 
1 

Union    and    position 

perfect. 
Perfect. 

All  right. 
Cured. 

Union   and    position 
perfect. 

•e:)U!ids  'o^ 



'5* 

'i 
g 

Slipped  on  ground. 

Fall. 

Fall  on  ice. 
Fall.] 

o  S 
en's 

1       1    1    1    1    1 

1 

Potts'  fracture. 

Potts'  fracture. 
Potts'  fracture. 
Potts'  fracture. 
Potts'  fracture. 
Potts'  fracture. 

•aSy 

IM        IMC0'*CDiO 

:x9g 

g   a^gfc's 

•ON 

iH      Neo-<nio;o 

its  55 


pi^ 

n 

o 

r/j 

S 

H 

p< 

H 

•a 

O 

a 

Ph 

ait 

-- ^ 

m 

"S  feog 

H 

p  Pi 

« 

P 

eo      CT 

H 

O 

<l 

K 

t4 

^=^ 

.2 

I    I 


I    1 


I    I    I 


IM        l-l       r-l 


•§    s  =  a 

ad)  n  .iS 

CO       IM        lail 
CO       CO  I 


g    S    P^' 


l-H         N        CO 


PROGNOSIS  IN  FRACTURES. 


485 


oof 
m  ™    . 

'S.'S  o 

to   ^  * 

p.  ©  § 
2  =s  2 

S  to  a 

ja  S'S       I 

s  o.e< 


73  3ts 
fc  8  2 


"O 


a 

^ 

^ 

s 

p<fl 

a 

OT 

a 

is 

;a 

l" 

H 

d 

O 

a 

a^ 

bo 

rt 

& 

•o 

u 

J3 

I    I    I 


1    I 


OS   «■ 


V 


U.2  "  d 


3ri5 


^ 


d    .  sx)^ 
"3  P-dM 

t3       P 


3d  P-a  P- 


o  S 

a  »• 

_& 


■73  -Ci 

gd-s  d'g 

K  o  S  o  S 

o'd  o.  fl  O" 


1  O         S    S 

I      ■«       =*  o       M   . 

u     p,    .-s  _  3  3  S 

p.-a  p.  6  iS  o  .2  5 


j^toM_ 


.2  « 

3  ^ 


iH(M     cq 


<i-l  c^ 


ad 

fls 

S-Si 

S^S 

=  'S2 

•C! 

ja 

a  a 

ice. 

ruck  by 
which  s 
raising  a 

.^S 

■a  ■« 

Si 

S.S. 

c  o. 

o   ^    « 

do  ^ 


■a  .a 
Id 


°5 


II 
d  oj 
.2  3 

2  3 


f   .1.1 
llll 


^ 

tJ 

^ 

!Zco 

D 

s 

1-5 

i-i 

(M 

-M 

s 

s 

to 

g^S 

s 

8 

ooo 

CQCO 

5 

'Si 

IM 

ss 

a 

s 

s 

fe^ 

s 

s 

SS 

s 

1 

a 

g 

Sf.; 

Ii< 

rH       cq       CO 


Tjiio     <o         t-         cooj         o 


rH        (M        CO  tHiO 


486 


CIVIL  MALPKACTICE. 


aanS  V 

S'^  !^, 

fe'o.'d 

in 

g-<-  a 

sga 

ZL,da 

^   S    0, 

^«a 

o  a>  d 

1 

a  f  s-^  ' 

i"^   • 

s  s    s^^ 

M 

^-Ssg- 

al£a-S 

I 

fl  be  »  p< 

ho  OS   so   to 

■s  a  „,  M  2 

« 

1 

fl  a  =  t! 

jj—  s  3 

t; 

>: 

"opsmsajnv 

£ 

1        i 

W      g. 

a 

f^ 

•13            a 

a 

•--•J 

a            o 

^ 

^'■■s       S- 

o 

p. 

f->tDu 

3 

to  2 

■n 

-"    &    a 
"  2  ■?,  ^    s 

o  a  g  cs     ^ 

1 

.2             o 

g 

a'-g         a  'a 

a 

S  a  l5      a 

o  o          o  S 

.2 

3      O   —    .rH                O 

•g  p,       '2  p, 

'3 

ftp  ^^    s 

P            P 

P 

P                                    P 

•s;ur[ds  "0^ 

CT                   (M 

- 

"^rH               CO 

■a 

ji                       g 

£? 

a 
a 

a                  -=   to 

p 

o 

"^^                     U-«  ^^ 

'5* 

to 

>.                 o  aj 

'C 

1             a 

1 

.Q                     J3 

O 

1                o 

1 

S                        "Sg 

■a 

t>                l2  o 

a 

P4 

o 

3                      ^ 

s 

P3             <! 

_a 

bE<§ 

o    _ 

-a            "2 

■as- 

2            S 

1 

1            1 

■s  a 

Ho                     _  •^ 

O    Jj 

rH            a^ 

^  o 

^                     GJ  ^ 

02^ 

■S 

°             2  S 

S   •  2 

CQ 

ja  gjd 

3 

3  j4      .          O  ^    O 

o  >«  t3     .5  2  .S 

o 

'3 

"5  tc ■a         ■«„ 

"S    1 

a*::   ""a'" 

a  1 

1 

Ph 

L,  ta  "^          o 

0) 

ST3    0<       -rt    gi-O 

l> 

ss 

cB  ~  p.     a  o  p  o 

«        n 

^  -3 

--<  (H  oi      03       CO 

si 

•33V 

cq              cq 

CO                                   T-l 

CO               -* 

■xag 

S              S 

s 

g             S 

•ON 

r-l                   (M 

m 

■*             >o 

<2.g 

?'S 

4^ 

I 

«  a 

^ 

3 

to  o3 

■2  ° 

a^a 

1 

1 

a 

to 

a 

o 

tw  a 
o  — 

o 

n1 

5|, 

p. 

o 

■S 
& 

U 

OJ 

.a 

1 

a  ^ 

o  ^ 

a 

8 

.p 

a 

t» 

o     . 

,P 

t3 

ce 

a  a 

^^•■ 

a  0 

a 

.— 

-rt 

a  a 

P.T3 

o 

•o 

C3 

.a 

a-cf 

M    g 

Is  =*■= 

;y  t- 

03 

^  » 

a. 

EH 

Cii 

i 

1 

A  a  ft 
o  a  cQ 

•z 

og,^ 

o^ 

a 

a 
.2 

B 

a 

*w 

p< 

3 

O 
P< 

g 

S  a 

K  a    . 

3.3 

o  a 

o        g 

3g 

.u,   &<? 

s§s 

gl 

^   c3 

0) 

.£?* 

0,0  a  ft 

ra 

P 

pci 

»^ 

tiO'-^ 

iS 

^ 

■s 

o 

.25 

.o 

a 

.0     0 

'-  ^-2 

a  rt 

3   " 

£ 

;f3§  a 

1 

1 

< 
1 

13 

■o 

a 

a 

c3 

^  t3 

^S-^ 

3)'^ 

1- 

^.t! 

o.= 

OJ= 

o3 

0O 

a  « 
.2  9 

a  0 
.2=3 

■S'O 

^a 

ga 

yd 

i-s 

1-5 

l-i 

eo 

(M 

(M 

g 

S 

S 

r-l 

IM 

CO 

PEOGNOSIS  IN  FRACTURES. 


487 


So. 

as 
P 

a  o 

at  ra 

d  =s 
.9  e: 

& 

OS    »    m 

c3!ta 


a  p.e) 
P  ( 


B   c3 

P3 


a 

ii 


O  73 


sa 


a 

(M 

jg 

^ 

g 

CO 

CO 
CO 

a 

a 

a 

a 

13 

bOd 

b 

i 

_d 

•" 

•3 

'S 

OJ 

a 

a 

3 

d 

d 

3 

•a 

o 

'■§ 

.M 

a 

« 

9^ 

o 

►^ 

ja 

ja 

t3 

.a 

-M 

e: 

3 

1 

1 

>>T3 

1 

1 

.2 

j= 

p. 

'a  ^ 

1 

t4 

>2 

d 

0  u 

85 

5i 

6 

3  0 

0)   03 

3i; 
p-T^ 

o 

s 

a 

0 

p. 

"3 

o 

1 

1 

o 

a 

1 

1 

CO    , 

o 

& 

o 

XI 

o 

3 

a 

J 

Ig 

*-* 

T3 

^  a 

^ 

o 

> 

.40 

c3 

"5 
p. 

S   3 

.2  '^ 

a 

3 

» 

P.C3 

o3  "" 

M 
1 

1 

— 

1 

a 
1 

- 

— 

- 

1 

1 

— 

1 

1 

1 

— 

1 

□ 
o 

1 

d" 

- 

"d" 
.2 

1 

1 

0 

i 

bo 

1 

a 

'3 

3 

•a 

1 

a 

-3 

5* 
P. 

1 

t4 

o 

a 

'3 

-a 
■a 

C3 

a 

o 

o 

bO 

d 
o 

3 

3 

a    3 

^  o  a 

^  o  ° 

o  ^'3 

73 
O 

& 

p. 

•a 
d 

d 
'a 

T3 

0 
bD 

d 

0 

"3 
3 

a 

d 

tS 

a 
.2 
"3 
3 

-3 

0 

CD 

*J  p. 

S3   0, 
bp  3 

^    C 

2.2 

a 

.2 

•  'a 

0)  -a 

ag 

P 

_^ 

!g 

& 

P_ 

E 

o_ 

ffl 

rH 

l-H 

I-H 

(M 

- 

- 

M 

- 

ii 

^ 

■^ 

P- 

.2 

wi 

« 

hc 

.  0 

3   =^ 

tS 

s 

^ 

2 

0   . 

(H 

t^ 

^   ^ 

o 

S 

1 

.0) 

3 
■0 

0-° 

a  -3 

a 
0 

1 

«D 

s 

a 

0) 

a 

rf 

4J1 

'oS 

"qj 

ci 

« 

"■& 

3 

'aJ 

M 

fe 

PR 

p^ 

H 

b 

■t^ 

s 

cd 

?  -S   ■ 

ja 

.2        u 

O. 

"          C3 

1 

_» 
3 
S 

1 

1 

•1 

I 

.s  a.a 

bi] 

3 

3 

3 

.2* 

c 

^   bo| 

o 

3 

3 

a 

o-iSP. 

o 

0 

•i^ 

0 

■a  -3 

•3 

£-1 

a 

^ 

"« 

"? 

j_^ 

1 

^ 

3 

3 

d 

^ 

ji 

ii 

a 

4> 

ffl 

_2 

_o 

■^ 

a 

a 

bb 

S 

■d 

r 

bil 

bi 

"2 

■a 

3 

d 

S 

^.1 

3 

a 

a 

^ 

3 
CO 

3 

(M 

i^ 

Oi 

^ 

CO 

CO 

CO 

iH 

rH 

CA 

C-l 

C>) 

10 

a 

a 

a 

a 

p=i 

a 

a 

- 

(M 

CO 

•* 

10 

to 

" 

488 


CIVIL   MALPKACTICE. 


•oiqaqjsseuy 


•s^njxds  -o^ 


a    . 


.9 
"3 

Through  the  con- 
dyles, which  are 
comminuted. 

Junction  upper  and 
middle  third. 

■eSy 

1-1               CO 

•X8g 

S          ^ 

•OK 

^ 

S 

d 

CO 

fn 

a 

M 

o 

>> 

X! 

T3 

S 

S 

o 

ja 

O 

d 

g 

o 

P 

B 

o 

-d 

^-, 

J3 

£1 

>> 

ti 

S-^      1 

« 

S 

s 

a 
1 

— 





J3 

tt 

OT 

>-. 

a 

o 

p 

s 

o 

•a 

o 

o 

a 

O 

<M 

□ 

^ 

J3 

tJ 

P 

o 

>S 

p 

Si 

bi 

1 

.s 

Q 

p 

M 

o 

o 

.P.O        1 

P3 

^ 

i—i 

:^ 

r-< 

H 


°  S     5 


S  •-  ■'^     "3  ^ 


■tf  O   cS. 


p..a 

13.9 


a  2 


.2  o  -^  >?  J3  P  g  .2  o  p  .2  o  S  o 

gtBmJJoOBSiSpiDiSJaiaoSP. 

PC-  p       p 


S.S 


«  9  §     «> 


!i 


J=  . 


S'H  po 
S'd+'-S'-i 


-■2 
"o 

H«P 
'  O 


H 

sg 

1-5 

M 

t- 

t~ 

00 

U3 

s 

^ 

g 

s 

CO  ■>!< 


PROGNOSIS  IN  FRACTURES. 


489 


5-  -a 


a-g 


•2  8 


"S'a 


2  o  S  " 

£  C5  -g  .2 


bo  t  'd 


;  §■« 


a      o 


(4 

1 

S.aS 

O. 

o  fl  d 

Ai 

P 

O 

r-l 

M 

t^ 

»o 

ej 

IM 

S 

^ 

a 

m 

Cfl 

bo 

S 

•a 

^ 

g 

3 

•s 

3 

O 

j3 

ho 

a 

J3 

o 

S 

J3 

5 

P- 

d 

s 

o 

E 

1 

<i 

fl 

ei 

1 

§ 

S 

-^ 

o 

o 

^a 

B 

rs 

o 

■3    3;g 

d 

T3 

d 

bod'3  d      1 

P 

& 

c^ 

M 

1 

$ 

g 

1 

(i 

s 

g 

ce 

P 

.Q 

5 
o 

X! 

0 

d 

-*J 

«- 

IM 

o 

■|^s 

•  - 

"2  f  a 

•a 

5 

S  ^  ^ 

H 

iJ 

r-i 

?3 

a 

2 

i-< 

(N 

490 


CIVIL   MALPEACTICE. 


TABLE   C— FRACTURES   OF   THE   FEMUR. 
Extra-capsular. 

From  HamiUon  {N.  Y.)  Med.  Jour.,  Aug.  1874. 


, 

, 

Result. 

S 

o 

t3 

ja 

.■s 

.■s 

if 

o 

o 

a 

a   . 

a-d 

S  3 

Treatment. 

t^ 

a 

3 

a 

a 

Sdrgeon,  Hospital 

S- 

^  M 

o 

g  2 

-3 

§^ 

ANB  Remarks. 

"*^  t2 

d 

ag 

>< 

ii 

53  g 

'3 

a^ 

■si  °- 

^ 

■< 

H 

m 
M 

« 

o 

^ 

<! 

" 

Oi 

1 

aSy. 

Im- 

Plaster Paris. 

U. 

44  d. 

1  in. 

Service  of  Wood. 

Im. 

pacted. 

Bellevue  Hospital. 

^<sf  6eZow   Trochanters. 


1 

12  y. 

- 

M 

R 

Compli- 
cated. 

Plaster  Paris. 

U. 

84  d. 

lin. 

Dr.  Early.      Recep- 
tion Hospital. 

Im. 

2 

16  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

U. 

72  d. 

1  in. 

Dr.  Wood.    Bellevue 
Hospital. 

Im. 

3 

28  y. 

- 

M 

L 

Simple. 

Plaster  Paris, 

u. 

49  d. 

None. 

Dr.    Van    Wagenen. 
Bellevue. 

P. 

4 

27  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

V. 

- 

11  in. 

Dr.   Sands.      B-vue. 
Abscess  1st  month. 

im. 

5 

68  y. 

M 

h 

Simple. 

Plaster  Paris  on 
19tli  day. 

fin. 

Bellevue.           Death 
from  ether. 

Im. 

Middle  of  Shaft. 


1 

11  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

V. 

- 

fin. 

Deformity.      Passive 
anchylosis.    Knee. 

Im. 

2 

1.5  v. 

_ 

M 

_ 

Simple. 

Plaster  Paris. 

U. 

Im. 

>-in. 

St.  Francis's  Hosp. 

Im. 

3 

16  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

U. 

6  w. 

IJin. 

Park  Hosp.    Fluhrer 
(Surg.) 

Im. 

4 

17  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

u. 

63  d. 

lin. 

Recep.  Hosp.     Great 
deformity. 

Im. 

5 

26  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

u. 

6w. 

|in. 

Fluhrer.  Park  Hosp. 
Limps  a  little. 

Im. 

6 

24  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

u. 

28  d. 

liin. 

Fluhrer    &     Early. 
Park  Hosp. 

Im. 

7 

25  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

u. 

2m. 

lin. 

Park  Hospital.     Dr. 
McKowan. 

Im. 

8 

80  y. 

F 

R 

Simple. 

Plaster  Paris. 

u. 

49  d. 

liin. 

29th  day  no  union. 
Anchylosis      after 
3    months.        Dr. 
Fluhrer. 

Im. 

9 

21  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

TJ. 

- 

Ij  in. 

Dr.  Griffiths.    Belle- 
vue Hospital. 

Im. 

10 

26  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

u. 

6  w. 

1  in- 

Hamilton  &  Torrey. 
Bellevue. 

im 

11 

29  y. 

~ 

M 

- 

Simple. 

Plaster  Paris. 

u. 

3  m. 

a  in. 

Goulay     &     Street. 
Bellevue.   Refract, 
in  4  months. 

Im 

12 

24  y. 

- 

M 

L 

Simple. 

Plaster  Paris. 

u. 

6  w. 

|in. 

Figaro.         Bellevue. 
Refract,  in  5  mon. 

im 

13 

39  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

- 

- 

IJ  in. 

Hamilton   &   Lewis. 
Deformitv. 

Im 

14 

70  y. 

_ 

K 

R 

Simple. 

Plaster  Paris. 

N.U. 

- 

_ 

Bellevue  Hospital. 

Im 

15 

44  y. 

- 

F 

R 

Compli- 
cated. 

Plaster  Paris. 

IT. 

2  m. 

2  in. 

Bellevue.          Wood. 
(Surg.)    Anchl'sis. 

Im 

16 

66  y. 

- 

M 

R 

Simple. 

Plaster  Paris. 

V. 

2  m. 

lin. 

Bellevue.          Wood. 
(Surg.)    Anchl'sis. 

im 

PROGNOSIS  m  FRACTUEES. 


491 


TABLE   C— FRACTUEES    OF   THE   FEMUR  (Continued). 
Middle  of  Shaft.     (Continued.) 

From  Hamilton  {N.  Y.)  Med.  Jour.,  Aug.  1874:. 


, 

, 

a> 

Result. 

S 

o 

■a 

— 

.•s 

■S 

o 

o 
a 

•3 

2 

a 

si 

o 

OS  "S 

Treatment. 

o 
■a 

a 
3 
a 

0-3 

-SI 

3   O 

Surgeon,  Hospital 
AND  Remarks. 

o 

?nS 

B'i 

X 

tSJ 

S  2 

'3 

SI 

a^ 

<2  S 

z 

< 

H 

■1 

F 

R 

o 

D 

< 

o< 

17 

50  T. 

_ 

Simple. 

Plaster  Paris. 

u. 

lin. 

BelleTue      Hospital. 

Im. 

Hamilton. 

18 

22  y. 

- 

M 

R 

- 

Plaster  Paris. 

u. 

51  d. 

Jin. 

Bellevue  Hospital. 
Wood.  Anchylosis. 

Tm. 

19 

23  y. 

M 

Simple. 

Plaster  Paris. 

Recep.  Hosp.  Gan- 
grene. Amputa- 
tion.    Death. 

Im. 

20 

20  y. 

- 

F 

R 

Simple. 

Plaster  Paris. 

u. 

- 

fin. 

Bellevue.     Sands. 

Im. 

Low  67-  Third. 


40  y. 

M 

R 

Simple. 

51  y. 

M 

L 

Com- 
pound. 

Plaster  Paris. 
Plaster  Paris. 


Park    Hosp.    Early. 
Bellevue  Hospital. 


In  the  same  paper  Prof.  Hamilton  presents  us  the  history 
of  nine  cases  of  fracture  of  the  femur  treated  during  the  years 
1871-3-4,  by  his  own  method  and  that  of  Buck,  both  being, 
essentially,  extension  by  "weight  and  pulley,  with  counter- 
extension,  —  Hamilton  utilizing  the  weight  of  the  patient's 
body,  Buck  using  a  perineal  bandage  made  of  inch  rubber 
tubing. 

In  Fractures  and  Dislocations  (p.  436,  5th  ed.},  he  extends 
this  table  so  as  to  include  twenty-four  cases.  On  the  next 
page  he  has  to  record  two  more  cases  of  gangrene  and  death 
from  the  immovable  dressing. 


492 


CIVIL  MALPRACTICE, 


TABLE  D.  — FRACTURES 

From  Hamilton  ( iV.  Y. )  Med. 


OF   THE  FEMUR. 
JouT.,  Aug.,  1874. 


, 

. 

o 

Result. 

6 

II 

h 

ii 

>i 

i 

"5: 

is 

^4i 

Teeatmeot. 

o 

a 

u 
o 

r3 
S 

■6 
'3 
a 

Resiabks. 

l-H 

fc 

<! 

EH 

02 

AT 

K 

o 

P 

< 

S 

1 

18  V. 

Simple 

Hamilton's      ap- 

u. 

Im. 

None. 

20    lbs.     extension. 

p. 

Mid. 

paratus. 

Straight. 

•1 

6y. 

- 

M 

L 

Simple 
Mid. 

2  thigh  splints. 

u. 

- 

None. 

5     lbs.      extension. 
Straight. 

p. 

3 

6y. 

- 

M 

L 

SUght 
wound. 

2  thigh  splints. 

u. 

None. 

Mid.  i.    Straight,  no 
anchylosis. 

p. 

4 

9y. 

- 

M 

L 

SUght 
wound. 

2  thigh  splints. 

u. 

5  w. 

iin.  Mid.  i. 

Im. 

5 

33  y. 

_ 

M 

L 

Simple 

Hamilton's      ap- 

u. 

6  w. 

1  in.   23-20-15     lbs.     &c. 

Im. 

Mid. 

paratus. 

Straight. 

6 

40  y. 

- 

F 

- 

Neck. 
Ex-eap. 

Hamilton's      ap- 
paratus. 

u. 

- 

fin. 

Wood,  2  weeks. 

Im. 

/ 

50  y. 

~ 

if 

R 

Xeck. 
Ex-cap. 

Buck's  apparat. 

V. 

~ 

lin. 

Fluhrer      at      Park 
Hospital. 

Im. 

8 

60  y. 

S 

R 

Neck. 
Int-cap. 

No  dressing  for  7 
days. 

V. 

1  in.  Dr.     Terriberry    ap- 
1     plied       extension, 
bat  no   long    side 
1     splint. 

y 

20  y. 

" 

V 

' 

" 

~ 

' 

" 

-      ;Xo.  20,  fract.  Mid.  in 
;     previous  table. 

There  is  one  point  in  connection  with  the  use  of  Plaster  of 
Paris  and  other  forms  of  immovable  dressing  which  has  not 
received  the  attention  of  surgeons  so  much  as  it  should  have 
done,  and  that  is  the  necessity  of  fixing  the  joints  on  either 
side  of  the  fracture,  so  that  they  will  be  immovable.  Yet 
this  immobility  of  the  joints  for  any  great  length  of  time  is 
objectionable.  Altogether  this  form  of  dressing  seems  to  be 
better  adapted  as  a  secondary  rather  than  as  a  primary  dress- 
ing- 

Complications.     Implication   of   the   joint   in  the   line  of 

fracture  almost  necessarily  gives  rise  to  a  certain  amount  of 
stiffness,  or  absolute  anchylosis,  b}^  the  deposition  of  irregular 
masses  of  bony  material  into  and  around  the  joint.  Of  this 
character  are  the  osteophytes,  which  are  so  apt  to  form, 
during  the  repair  of  fractures,  near  the  shoulder  and  hip- 
joints.  Over  these  formations  the  surgeon  has  but  little  if 
any  control.  Again,  in  strumous  or  scrofulous  patients,  such 
implication   may  cause  disorganization    of   the   articulation, 


PROGNOSIS  IN  FRACTURES.  493 

and  thus  eventually  render  amputation  imperative.  Chorea, 
affecting  a  limb  which  is  the  seat  of  a  fracture,  is  a  very 
serious  complication.  Fractures  in  a  paralyzed  limb  unite ; 
danger  to  be  apprehended  here  is  from  sloughing.  Tardy 
or  delayed  union  of  bones  is  occasionally  met  with,  and  is, 
probably,  more  often  dependent  on  constitutional  than  on 
local  causes.  Sometimes  it  appears  to  result  from  mere 
debility  and  depression,  without  the  existence  of  any  positive 
cachexia.  Occasionally,  a  broken  bone  does  not  unite  at  all, 
or  unites  only  through  the  medium  of  fibrous  or  ligamentous 
bands ;  or,  having  united,  becomes  again  separated  by  the 
absorption  and  softening  of  the  callus.  In  some  bones,  in- 
deed, as  in  the  patella,  bony  union  almost  never  occurs.  So 
also  fractures  of  the  neck  of  the  femur,  within  the  capsule. 
Among  the  causes  of  non-union  may  be  mentioned  general 
impairment  of  health,  and  various  cachectic  conditions  and 
diatheses,  such  as  scurvy,  phthisis,  rickets,  syphilis,  or  can- 
cer. 

In  respect  to  union  in  the  case  of  paralyzed  limbs,  I  think, 
when  it  takes  place,  it  certainly  must  be  somewhat  slower 
than  usual.  It  is  an  accepted  doctrine,  that  the  nutrition  in 
a  paralyzed  part  is  generally  if  not  always  impaired,  and  as 
a  consequence  repair  must  progress  slowly.  Nutrition  might 
be  so  much  impaired  that  union  would  not  take  place  at  all. 
Mr.  Travers  reports  a  case  in  which  a  "  patient  had  a  fract- 
ure in  the  arm  and  another  in  the  leg  complicated  with  an 
injury  of  the  spine  which  palsied  the  lower  half  of  the  body. 
The  broken  humerus  readily  united,  but  the  tibia  and  fibula 
refused  to  heal."     Gross's  Surg.  vol.  1  (3d  ed.),  p.  882. 

In  suits  for  malpractice  in  the  treatment  of  fractures  of  the 
lower  extremity,  one  of  the  allegations  is,  generally,  "  short- 
ening." "  With  regard  to  the  prognosis  of  fractures  through 
the  shaft  of  the  femur,  I  have  no  hesitation  in  saying  that  I 
have  never  seen  a  perfect  cure,  either  in  my  own  practice  or 
in  that  of  others  ;  by  this  I  mean,  that  I  have  never  seen  a 

cure  without  shorteninsr I  have  never  seen  less  short- 

ening  than  a  quarter  of  an  inch  after  fracture  of  the  thigh, 


494  CIVIL   MALPRACTICE. 

even  in  children  ;  and  I  consider  a  shortening  of  from  half 
an  inch  to  an  inch  a  satisfactory  result  in  adults."  Ash- 
urst's  Surg.  260. 

Velpeau  says  that  "  after  fractures  of  the  femur  there  is 
no  limping  unless  the  shortening  exceeds  three  quarters  of  an 
inch ;  and  the  same  is  true  if  the  shortening  occurs  in  the 
tibia." 

"  When,  in  consequence  of  displacement,  an  overlapping 
continues,  the  average  amount  of  shortening,  in  adults,  in 
simple  fractures,  will  be  about  three  quarters  of  an  inch,  and 
ranging  from  one  quarter  of  an  inch  to  one  inch  and  a  half  ; 
nor  will  a  greater  amount  of  shortening  necessarily  imply 
unskilful  management.  With  children,  the  average  amount 
of  shortening  is  probably  from  one  quarter  to  half  an  inch. 
Compound  fractures,  including  nearly  all  gunshot  fractures, 
unite  generally  with  a  shortening  of  from  one  and  a  half  to 
three  inches  or  more.  In  fractures  of  the  tibia  and  fibula, 
which  are  mostly  oblique,  union  generally  takes  place  with  a 
shortening  of  half  an  inch."  Hamilton,  Princip.  and  Prac. 
of  Surg.  292,  308. 

Among  eminent  surgeons  who  claim  to  have  cured  most  or 
all  fractures  of  the  femur  without  shortening,  may  be  men- 
tioned Amesbury,  South,  Hunt,  and  Gamgee,  of  England  ; 
Dorsey  of  Philadelphia,  and  Scott  of  Montreal.  In  regard  to 
these,  Professor  Hamilton  remarks  :  "  It  is  never  a  pleasant 
duty  to  call  in  question  the  accuracy  of  another's  statements 
as  to  what  he  has  himself  alone  seen  and  experienced.  The 
circumstances  which  would  justify  such  an  expression  of 
skepticism,  where  the  witnesses,  as  in  this  case,  are  presumed 
to  be  intelligent  and  honest  men,  must  be  extraordinary. 
Such,  however,  I  conceive  to  be  the  circumstances  in  this  in- 
stance. It  is  certainly  very  extraordinar}^  that  a  few  gentle- 
men of  acknowledged  skill,  but  whose  means  and  appliances 
are  concealed  from  no  one,  are  able  to  do  what  nearly  the 
whole  world  besides,  with  the  same  means,  acknowledges  it- 
self unable  to  accomplish.  Sucli  is  the  fact,  nevertheless  ; 
and  our  lack  of  faith  in  their  testimony  is  only  a  necessary 


PROGNOSIS   IN  FRACTURES.  495 

result  of  our  experience,  and  of  the  experience  of  the  vast 
majority  of  practical  surgeons  as  opposed  to  theirs." 

In  the  same  connection  Professor  Hamilton  gives  the  names 
of  the  many  eminent  surgeons  who  admit  shortening  as  a 
necessary  sequence  in  most  fractures  of  the  femur.  Among 
these  names  we  find  Hippocrates,  Celsus,  Avicenna,  Sculte- 
tus,  Chelius,  John  Bell,  Benj.  Bell,  Nelaton,  Malgaigne, 
Maclise,  Holthouse,  Mott,  Knight,  Detmold,  J.  Mason 
Warren,  Bigelow,  and  Lente. 

"  It  should  be  borne  in  mind  that  fractured  limbs  have 
been  released  from  splints,  and  other  dressings,  at  the  proper 
time,  of  proper  length  and  free  from  deformity,  which,  never- 
theless, have  soon  become  both  shortened  and  bent."  Lis- 
ton's  Elements  of  Surg.  (Am.  ed.)  555.  See  also  Lane, 
"  Inaugural  Dissertation,"  University  of  Berlin,  1876. 

Compound  and  comminuted  fractures  are  much  more 
difficult  of  management.  Necrosis  of  some  of  the  fragments 
almost  necessarily  follows. 

It  is  extremely  difficult  to  determine  just  what  will  follow 
any  injury  of  a  joint,  in  consequence  of  difference  in  the 
susceptibility  of  the  joints.  One  patient  may  have  a  com- 
pound comminuted  fracture  of  the  patella  and  may  have  a 
perfect  recovery,  with  a  little  antiphlogistic  treatment. 

Dr.  James  W".  Bell,  in  Brit.  Med.  Jour.,  relates  sevei'al 
cases  bearing  upon  this  point.  One  case  in  which  a  com- 
pound comminuted  fracture  of  olecranon  was  followed, 
upon  the  fourth  day,  by  unhealthy  inflammation  of  the  soft 
parts ;  pyaemia  occurred  and  death  was  the  result.  Another, 
in  which  a  lacerated  wound  of  the  knee-joint,  without  injury 
to  the  bone,  was  followed  by  traumatic  delirium  and  death. 
Another,  a  youth  whose  knee-joint  was  twice  injected  with 
iodine  which  excited  but  little,  if  any,  local  inflammation  or 
general  disturbance. 

Again,  in  certain  fractures  near  joints  it  is  impossible  by 
any  appliance  to  keep  the  fragments  in  apposition.  Fract- 
ures of  the  tibia  within  the  joint,  where  a  portion  of  the  exter- 
nal or  fibular  side  of  the  tibia  is  separated  from  the  shaft  of 


496  CIVIL  MALPEACTICE. 

the  bone,  the  fragment  is  held  to  the  fibula  by  the  tibio-fibular 
ligament ;  but  the  bone  itself,  no  longer  under  control  of  this 
ligament,  slips  upon  the  smooth  articular  surface  of  the 
astragalus,  puts  the  deltoid  ligament  on  the  stretch,  and 
crowds  the  internal  malleolus  against  the  skin  in  the  most 
threatening  manner. 

Fractures  extending  into  joints  are  accidents  of  very  great 
gravity  from  the  inflammation  that  invariably  follows. 


NON-UNION". 


Non-union  will  occur  in  a  certain  number  of  cases,  no 
matter  what  care  the  surgeon  may  exercise. 

Where,  on  account  of  the  contusion  and  consequent  dan- 
gers of  undue  inflammation,  the  dressing  must  not  be  ap- 
plied tightly,  every  act  of  speaking  or  swallowing  necessarily 
excites  motion  between  the  fragments,  and  in  cases  where 
there  is  a  constitutional  tendency  to  disease  of  the  bones,  as  in 
syphilis,  rachitis,  &c.,  the  surgeon  should  not  beheld  respon- 
sible, and  would  not  be  if  these  conditions  could  be  fully 
understood  by  courts  and  juries.  So,  too,  the  injudicious 
actions  of  the  patient,  the  intervention  of  substances  be- 
tween the  ends  of  the  fragments,  are  conditions  over  which 
the  surgeon  has  but  little  if  any  control. 

For  an  interesting  paper  and  table  of  one  hundred  and 
fifty  cases  of  non-union,  see,  Norris,  Contributions  to  Prac- 
tical Surgery,  also,  Berenger-Ferand,  Surg.  Pathology. 

Frequent  motion  of  the  fractured  bone,  which  is  held  by 
some  surgeons  to  be  one  of  the  most  common  causes  of  non- 
union, is  without  doubt  one  cause,  but  not  the  most  common 
by  any  means.  How  seldom  is  a  false  joint  found  in  animals, 
whose  broken  limbs  usually  get  well  without  any  treatment 
whatever.  Indeed,  handling  a  limb  a  little  roughly,  after 
the  acute  inflammatory  symptoms  have  subsided,  I  apprehend, 
will  rather  hasten  than  retard  bony  union,  by  calling  a  larger 
afflux  of   blood   to  the  seat   of   fracture,   and  consequently 


PROGNOSIS  IN  FRACTURES.  497 

a  larger  amount  of  reparative  material.  My  impressions  are, 
that  the  want  of  consolidation  more  frequently  depends  upon 
the  slight  amount  of  inflammation  that  follows  the  injury, 
rather  than  upon  excess  of  this  healing  process,  or  upon  the 
small  amount  of  motion  there  could  exist  in  a  limb  reasonably 
well  supported  by  splints  and  bandages.  Indeed,  the  local 
atony  resulting  often  from  the  immobility  aimed  at  by  nu- 
merous forms  of  dressing,  is  a  frequent  cause  of  non-union;  and 
the  blisterings,  setons,  &c.,  used  in  the  treatment,  are  based 
upon  a  sound  principle  —  the  removal  of  the  atonic  condition. 
So  also  judicious  use  of  the  injured  limb  after  forty,  or  even 
after  thirty  days,  will  hasten  and  confirm  the  consolidating 
process.  Under  such  exercise  the  passive  congestion  will  give 
place  to  the  plastic,  while  the  general  health  of  the  patient 
will  at  the  same  time  be  encouraged. 

Friction,  or  rubbing  the  extremities  of  the  bones  against 
each  other  ;  blisters  applied  over  seat  of  fracture  ;  setons, 
near  or  between  the  fragments ;  resection  of  the  fractured 
extremities  ;  compression  and  rest ;  electricity  ;  perforation 
of  ends  of  fragments  and  the  insertion  of  ivory  pegs,  as 
recommended  by  Dieffenbach  ;  or  simple  perforation  of  the 
fragments  in  various  directions,  covering  the  puncture  through 
the  soft  tissues,  immediately  with  collodion,  as  practised  by 
the  late  Professor  Brainard,  are  the  means  generally  resorted 
to  by  surgeons  to  effect  consolidation  of  the  fracture.  These 
failing,  amputation  is  the  last  resort,  and  this  only  to  be 
used  when  the  false  joint  is  such  as  to  make  the  life  of  the 
patient  miserable. 

Following  injuries  in  and  about  the  joints,  we  sometimes 
have  impairment  or  entire  loss  of  motion  in  the  joint.  This 
condition  is  technically  called  anchylosis.  As  a  subsequent 
result  of  the  inflammatory  process  which  attends  such  injuries, 
lymph  is  thrown  out,  and  this  becoming  organized  into  con- 
nective tissue,  the  opposing  extremities  are  so  bound  together 
that  stiffness  or  immobility  of  the  joint  follows.  This 
condition  is  termed  false  anchylosis,  and  is  the  condition 
that  is  frequently  benefited  by  "  natural  bone  setters,"  who 

32 


498  CIVIL  MALPRACTICE. 

generally,  removed  from  the  pale  of  legal  and  moral  respon- 
sibility, and  not  knowing  what  harm  may  result  from  their 
ignorance,  violently  rupture  these  false  bands,  and  so  restore 
the  mobility  of  the  joint.  The  same  result  sometimes  follows 
a  subsequent  accident. 

S.  M.  (case  v^  Fracture  of  Tibia  and  Fibula,  Lower  Third), 
was  thrown  from  a  wagon  and  sustained  a  compound  fract- 
ure of  tibia.  Following  the  treatment,  the  ankle  remained 
immovable  some  two  or  three  years.  Leading  a  restive  ani- 
mal from  the  stable,  he  was  jerked  forward  violently,  alight- 
ing on  the  toe  of  the  injured  limb.  He  felt  something  tear, 
and  feared  his  limb  was  again  broken.  On  removing  his 
boot,  he  found  the  mobility  of  the  ankle  restored.  Passive 
and  active  exercise  of  the  joint  resulted  in  complete  restora- 
tion of  its  functions.  Thus  we  perceive  that  the  reduction 
of  a  false  anchylosis  is  practicable  by  means  of  force,  but 
from  the  application  of  this  force,  another  form  of  inflamma- 
tion may  be  aroused,  viz.,  suppurative  inflammation,  whereby 
a  destruction  of  the  interior  of  the  joint  may  result,  and  by 
a  bony  union  of  the  opposing  ends  of  the  articulating  bones 
true  anchylosis  will  follow.  But  this  is  not  the  most  serious 
result.  The  suppurative  action  may  become  so  extensive  as 
to  demand  the  removal  of  the  limb  by  amputation,  or  it  may 
be  so  great  as  to  result  in  death. 


NEGLIGENCE.  499 


CHAPTER  XVII. 

NEGLIGENCE. 

1.  Whatever  view  physicians  may  take  of  tbe  question 
of  negligence,  when  it  comes  to  be  judicially  investigated,  it 
will  be  from  the  stand-point  of  the  Law  and  not  from  that 
of  Medicine.  That  is,  cases  of  negligence  in  other  depart- 
ments of  science,  or  in  other  professions,  or  employments  in 
life,  will  be  cited  as  bearing  upon  the  case,  and  the  law  as 
applied  to  them  will  be  applied  to  the  medical  or  surgical 
case  under  consideration  ;  it  is  proper,  therefore,  that  phy- 
sicians and  surgeons  should  have  some  knowledge  of  its  legal 
interpretation. 

2.  Strictly  speaking,  the  term  is  limited  in  its  application  to 
carelessness  in  the  performance  of  professional  duty.  Care- 
lessness is  its  proper  synonym.  Duties  performed  without 
care,  caution,  attention,  diligence,  skill,  prudence,  or  judg- 
ment, are  negligently  performed.  Acts  are  so  designated 
that  are  performed  by  one  heedlessly,  even  where  there  is  no 
purpose  to  omit  the  performance  of  duty.  It  is  wow-feasance, 
not  maZ-feasance.  It  is  the  omitting  to  do  and  not  the  ill- 
doing,  —  this  last  being  a  want  of  skill.  It  has  been  said  that 
in  its  various  degrees  "  it  ranges  between  simple  accident  and 
actual  fraud,  the  latter  commencing  where  negligence  ends." 

Gardner  v.  Heartt,  3  Denio,  232-236.  This  is  rather  a  broad 
definition,  and  perhaps  it  was  intended  that  negligence  may 
be  as  prejudicial  as  fraud,  for  the  court  goes  on  to  say, 
"  Negligence  is  evidence  of  fraud,  but  still  is  not  fraud."    In 

Tonawanda  R.  Co.  v.  Munger,  5  Denio,  255-267,  the  same 


500  CIVIL  MALPRACTI(.^E. 

court  held  that  "  Negligence,  even  when  gross,  is  but  an 
omission  of  duty,"  which  relegates  it  to  simple  wow-feasance. 
It  is  a  violation  of  the  obligation  that  medical  men  impliedly 
enter  into  when  they  accept  the  charge  of  a  patient,  which 
obligation  enjoins  care  and  caution  in  what  they  do  and  in 
what  they  omit  to  do. 

3.  Physicians  and  surgeons  have  specific  duties  imposed 
upon  them.  They  are  at  liberty  to  refuse  a  mandate  to  per- 
form these  duties,  but  if  they  once  enter  upon  the  discharge  of 
them,  then  they  are  to  so  conduct  themselves  that  no  injury 
results  to  the  mandator,  or  that  the  least  possible  injury 
results ;  and  if,  at  any  time,  they  desire  to  withdraw  from 
the  case,  they  must  give  such  reasonable  notice  of  such  with- 
drawal as  will  enable  the  mandator  to  perform  those  duties 
himself,  or  through  some  one  else.  Refusing  to  perform  their 
part  of  the  implied  contract  would  constitute  negligence, 
and  for  all  injuries  resulting  therefrom  they  would  be  held 
accountable.  It  would  constitute  a  tort  for  which  the  law 
gives  damages.  The  law  is  applicable  to  attorneys  as  well  as 
to  physicians  and  surgeons. 

"It  is  not  every  mistake  or  misapprehension  of  an  attorney 
that  will  make  him  liable  to  an  action  for  negligence.  The 
question  in  such  an  action  is,  whether  the  attorney  has  used 
reasonable  skill  and  reasonable  care."  Shilcock  v.  Passman^ 
7  Carr.  &  P.  289.  This  is  all  that  is  required  of  physicians 
and  surgeons. 

4.  The  surgeon  must  not  perform  serious  operations,  where- 
in large  blood-vessels  are  opened,  and  leave  the  staunching  of 
the  hemorrhage  to  the  patient  and  unskilled  attendants.  Nor 
must  the  obstetrician  abandon  his  lying-in-patient,  while  in 
convulsions,  nor  after  her  delivery,  until  the  placenta  is  re- 
moved, and  all  danger  from  post-partum  hemorrhage  is 
passed,  in  one  liable  to  this  accident ;  unless,  it  may  be,  he 
belongs  to  that  school  of  practice  "  that  permits  the  placenta 
to   remain  till  expelled  by  efforts  of  nature."     Bowman  v. 

Woods^   1  G.  Greene   (Iowa),  441.      It   is  not  competent, 
however,  for  the  plaintiff  to  give  evidence  that  the  defendant 


NEGLIGENCE.  501 

abandoned  the  patient  and  refused  to  attend  further  upon 
him,  unless  the  cause  of  action  be  so  hiid  in  the  dechiration. 
Bemus  v.  Howard,  3  Watts  (Penn.),  255.  Thus  in  Hohy  v. 
Built,  3  Barnewall  &  Adolphus,  350,  an  action  against  an 
attorney  for  neghgence,  Bosanquet,  J.,  told  the  jury,  he 
was  of  opinion  that,  although  an  attorney  who  undertakes  a 
cause  is  not  bound,  at  all  events,  to  proceed  with  it  if  he  is 
not  supplied  with  funds  ;  yet,  that  an  attorney  who  has  un- 
dertaken a  defence  with  a  view  to  trial  cannot  abandon  it  on 
the  eve  of  the  assizes,  without  giving  his  client  a  reasonable 
opportunity  of  resorting  to  other  assistance  ;  and  he  directed 
them  to  consider  whether  the  notice  given  in  this  case  was, 
with  reference  to  all  the  circumstances,  reasonable  in  that 
respect.  The  jury  found  a  verdict  for  the  plaintiff,  with 
.£166  10s.  damages. 

Taken  before  the  higher  court.  Lord  Tenterden,  C.  J., 
declared  that  "  the  learned  judge's  direction  was  quite  cor- 
rect. If  an  attorney  desires  to  quit  his  client,  he  must  give 
him  reasonable  notice.  It  was  left  to  the  jury  as  a  fact  to 
say  whether  reasonable  notice  was  given  in  this  case  or  not, 
and  they  have  found  that  it  was  not. 

LiTTLEDALE,  J.  The  law  was  laid  down  most  correctly 
to  the  jury.  There  was  not  sufficient  time  to  have  the  attor- 
ney changed  between  Saturday  and  Thursday,  and  there 
might  have  been  a  difficulty  in  the  plaintiff's  raising  the 
money  in  that  time.  Under  the  circumstances  of  this  case, 
the  defendant  should  at  least  have  had  an  application  made 
to  the  court  to  postpone  the  trial. 

Taunton  and  Patterson,  JJ.,  concurred. 

In  Roivson  v.  Earle  the  same  learned  Chief  Justice  held, 
that  an  attorney  who  had  given  notice  that  he  would  not  go 
on  with  a  cause  in  the  Court  of  Chancery  without  being  sup- 
plied with  money,  had  a  right  to  desist  from  it,  and  might 
recover  for  the  work  done  up  to  that  time.     9  Bingham,  402. 

The  same  doctrine  was  laid  down  in  Vansandau  and  Tin- 
dale  V.  Browne,  9  Bing.  402,  by  Tindal,  C.  J. ;  Gaselee,  Bosan- 
quet, and  Alderson,  JJ.,  concurred.  In  this  case  the  most 
ample  notice  was  given. 


502  CIVIL  MALPEACTICE. 

But  it  must  be  remembered,  that  whether  the  notice  of 
retiring  from  the  case  be  "  reasonable  and  sufficient "  is  a 
question  of  fact,  to  be  determined  by  the  jury.  So,  too,  in 
the  case  of  a  surgeon  or  physician,  the  question  as  to  whether 
he  had  given  the  patient  reasonable  notice,  when  he  chose  no 
longer  to  sustain  the  responsibility  of  the  case,  would  be  a 
question  of  fact  for  the  consideration  of  the  jury. 

5.  In  Woodward  v.  Hancock^  1  Jones  Law  N.  C.  384, 
Manly,  J.,  said :  "  What  amounts  to  reasonable  skill  and 
care  belongs  to  a  class  of  questions  which  are  said  to  be 
compounded  of  law  and  fact.  In  this  class  stand  reasonable 
time,  due  diligence,  legal  provocation,  probable  cause,  and  the 
like.  A  division  of  the  question  in  such  cases,  between  the 
court  and  jury,  is  now  considered  and  settled ;  and,  therefore, 
where  there  is  a  state  of  facts  conceded  or  proved,  it  becomes 
the  duty  of  the  court  to  draw  the  conclusion  as  matter  of  law. 
If  there  be  a  conflict  of  testimony  presenting  different  views 
of  the  case,  it  is,  in  like  manner,  the  court's  duty,  upon  these 
views,  to  draw  the  proper  conclusions." 

This  was  a  case  in  which  the  court  below  had  left  it  to  the 
jury  "  to  find  whether  the  defendant  possessed  the  requisite 
skill,  and  had  exerted  it  in  the  plaintiff's  behalf."  The  jury 
found  that  the  defendant  either  had  not  the  skill  or  had  not 
used  it.  Venire  de  novo  was  ordered  by  the  appellate 
court,  because  the  question  was  one  of  law  and  fact,  "  and  it 
was  consequently  erroneous  to  leave  it,  in  that  state,  to  be 
decided  by  the  jury."  The  court,  after  citing  some  analo- 
gous cases,  goes  on  to  say :  "  None  of  these  cases  concerned 
the  requisite  skill  and  care  in  a  learned  profession  ;  but  if  a 
separation  of  the  inquiry  in  such  cases  into  questions  of  law 
and  fact  be  proper,  in  order  to  refer  matters  purely  of  reason- 
ing to  the  tribunal  most  capable  of  considering  them,  and, 
therefore,  most  likely  to  maintain  uniformity  of  decision, 
much  more  ought  the  question  arising  in  this  case  to  be  so 
adjudged.  It  is  seen  to  involve  not  only  matter  of  reasoning, 
but  reasoning  as  to  the  due  execution  of  work  in  a  learned 
science.     We   are   of  the  opinion  that  it  was  error  in  the 


NEGLIGENCE.  503 

Superior  Court  to  leave  it  to  tlie  jury  to  decide  the  questions 
of  skill  and  care  in  a  surgeon's  treatment  of  his  patient, 
without  the  aid  of  the  court's  opinion,  based  upon  proper 
suppositions  as  to  the  facts  found  by  the  jury."  Therefore 
the  judgment  ivas  reversed. 

The  same  doctrine  was  enunciated  in  Foot  v.  Wiswall,  14 
J.  R.  304,  but  in  most  of  the  courts  the  question  is  considered 
as  one  simply  of  fact  to  be  proved  like  any  other.  Cfreat 
Wester7i  R.  R.  Co.  of  1859  v.  Haworth  et  al.  39  111.  346  ; 
Skelley  v.  Kahn,  17  111.  170  ;  The  a.  ^  Q.  U.  R.  R.  Co.  v. 
Yarwood,  Ibid.  509  ;  111.  Cent.  R.  R.  Co.  v.  Munn,  57  111.  78 ; 
Briggs  v.  Taylor,  28  Vt.  R.  180. 

6.  From  the  fact  that  a  person  who  undertakes  to  do  an 
act  for  another  is  only  held  to  the  exercise  of  reasonable  or 
ordinary  care,  it  follows  that  there  must  be  degrees  of  negli- 
gence in  the  performance  of  such  acts.  In  the  Steamboat  New 
World  V.  King,  16  Howard  469,  U.  S.  S.  C.  R.,  Curtis,  J., 
said  :  "  It  may  be  doubted  if  these  terms,  '  slight,'  '  ordinary,' 
and  '  gross,'  can  be  usefully  applied  in  practice."  In  most  of 
the  cases,  however,  in  which  this  view  is  taken,  the  question 
relates  to  whether  a  clause  in  an  agreement,  providing  against 
liability  for  "  negligence,"  "  protected  the  party  receiving  it 
from  liability  for  '•gross  '  negligence,  and  it  was  held  that  it 
did."  Shearman  &  Redfield  on  Negligence,  §  16.  Judge 
Curtis  goes  on  to  say,  as  a  reason  for  disusing  the  terms, 
that  "  their  meaning  is  not  fixed  or  capable  of  being  so.  One 
degree,  thus  described,  not  only  may  be  confounded  with 
another,  but  it  is  quite  impracticable  exactly  to  distinguish 
them.  In  Briggs  v.  Taylor,  28  Vt.  R.  180,  a  case  in  which  a 
law  officer  was  charged  with  negligence  in  the  care  of  certain 
vehicles,  he  held  under  an  attachment,  Mr.  Chief  Justice 
Redfield  said  that  "these  terms,  'ordinary  and  common 
care,  and  diligence,  and  prudence,'  might  not  always  mislead 
a  jury.  But  it  seems  to  us,  they  are  somewhat  calculated  to 
do  so.  If  the  object  be  to  express  the  medium  of  care,  and 
prudence  among  men,  it  is  certain  these  terms  do  not  signify 
a  fixed  quantity  of  mediocrity  even."     In  the  same  case  he 


504  CIVIL  MALPEACTICE. 

cites  several  English  cases.  Thus  in  Duff  v.  Budd^  3  Brod. 
&  Bing.  177,  Dallas,  Ch.  J.,  lays  down  the  rule  to  the  jury- 
in  these  words  :  "  Gross  negligence  is  where  the  defendant 
or  his  servants  have  not  taken  the  same  care  of  the  property 
as  a  prudent  man  would  have  taken  of  his  own.  The  same 
doctrine  is  enunciated  in  Riley  v.  Home.,  5  Bing.  217  ;  Bat- 
son  V.  Donovan,  4  Barn.  &  Aid.  21.  In  Wyld  v.  Bickford,  8 
M.  &  W.  443,  Baron  Parke  seems  to  claim  a  distinction  be- 
tween gross  negligence  and  ordinary  neglect,  but  admits  that 
ordinary  neglect  may  be  correctly  defined  in  the  above  cases. 
In  Wilso7i  V.  Brett,  11  M.  &  W.  113,  Baron  Rolfe  says  : 
"  I  said  I  could  see  no  difference  between  negligence  and  gross 
negligence  ;  that  it  was  the  same  thing  with  the  addition  of 
a  vituperative  epithet.  There  is  a  tendency  in  both  the  Eng- 
lish and  American  courts,  lately,  to  repudiate  the  use  of  the 
terms." 

Mr.  Justice  Bkadley  (iV.  Y.  C.  R.  Co.  v.  Lockwood,  U.  S. 
S.  C,  Oct.  Term,  1873)  says,  if  the  courts  "  seek  to  abolish 
the  distinction  of  degrees  of  care,  skill,  and  diligence  required 
in  the  performance  of  various  duties,  and  the  fulfilment  of 
various  contracts,  we  think  they  go  too  far;  since  the  require- 
ment of  different  degrees  of  care  in  different  situations  is 
too  firmly  settled  and  fixed  in  law  to  be  ignored  or  changed. 
The  compilers  of  the  French  Civil  Code  undertook  to  abolish 
these  distinctions,  by  enacting  that  "  every  act  whatever,  of 
man,  that  causes  damage  to  another,  obliges  him  by  whose 
fault  it  happened  to  repair  it."  .  .  .  .  "  But  such  an 
iron  rule  is  too  regardless  of  the  foundation  principles  of 
human  duty,  and  must  often  operate  with  great  severity  and 
injustice.  In  the  case  under  consideration,  the  law  fixed  the 
degree  of  care  and  diligence  due  from  the  railroad  company 
to  the  person  carried  on  its  trains  ;  it  was  unnecessary  to  tell 
the  jury  whether,  in  the  language  of  law  writers,  such  negli- 
gence would  be  called  gross  or  ordinary." 

In  pleadings  where  the  averment  of  negligence  is  sufficient 
to  admit  of  proof  of  gross  negligence,  the  disuse  of  the  terms 
is  well  enough  ;  but  that  there  are,  in  reality,  different  degrees 


NEGLIGENCE.  605 

of  negligence,  seems  consistent  with  common  sense,  Tience 
the  civil  law  affirms  it. 

For  instance,  a  surgeon  is  called  to  a  patient  with  a  fract- 
ured leg.  He  dresses  the  leg  with  a  flimsy  piece  of  paste- 
board, and  sees  the  man  no  more.  When  the  bone  has 
united,  it  is  found  that  the  limb  is  badly  deformed,  and  is 
in  a  measure  useless.  This  should  certainly  be  considered 
"  gross  "  negligence.  Or  he  dresses  it  with  appropriate  splints, 
and  fails  to  visit  his  patient  for  forty-eight  hours,  during 
which  time,  from  the  severity  of  the  injury,  there  has  been 
developed  an  extensive  inflammation,  perhaps  of  an  erysipel- 
atous character,  requiring  the  removal  of  all  mechanical  ap- 
pliances, and  as  a  result  there  follows  deformity  and  loss 
of  function,  as  before.  This  certainly  was  not  "gross"  neg- 
ligence ;  the  very  nature  of  the  injury,  or  the  peculiar  condi- 
tion of  the  patient's  system  at  the  time,  may  have  hastened 
the  unfortunate  consequence ;  and  this  the  surgeon,  unable  to 
prognosticate,  has  failed,  as  surgeons  fail  repeatedly,  to 
remedy,  by  a  visit  made  a  few  hours  earlier.  It  is  an  "  ordina- 
ry "  negligence.  Or  he  dresses  the  limb  skilfully,  with  the 
proper  appHances,  has  made  all  the  visits  the  case  demanded, 
but  he  failed  or  neglected,  on  several  consecutive  occasions 
to  unwrap  the  limb,  and  when  finally  he  does  so,  he  finds 
that  the  point  of  one  of  the  fragments  has  ulcerated  through 
the  soft  tissues,  making  an  external  sore,  which  takes  on  an 
erysipelatous  character,  leading  to  the  same  unfortunate 
result  as  before.  So  far  as  the  patient  is  concerned  the 
damage  is  alike  in  each.  Neither  the  common  law  nor 
common  sense  would  ascribe  to  the  surgeon  the  same  degree 
of  negligence  in  the  three  hypothetical  cases.  The  first  was 
"gross,"  the  second  "ordinary,"  the  last  a  slight  negligence. 
All  that  is  required  of  the  bailee,  is  that  he  "  proportions  his 
care  to'  the  injury  or  loss  which  is  likely  to  be  sustained  by 
any  improvidence  on  his  part."  Story  on  Bailment,  §  15. 
For  fear  that  these  distinctions  would  not  be  made  by  the 
jury,  where  disputes  have  arisen  between  lawyers  and  clients, 
and  between  physicians  and  patients,  courts  have  repeatedly 


506  CIVIL  MALPRACTICE. 

charged  that  the  defendant  in  such  an  action  is  only  liable 
for  crassa  negligeoitia,  as  in  Purves  v.  Landell,  12  Clark  & 
Fin.  91,  where  Lord  Brougham  said:  "It  is  the  very 
essence  of  this  action  that  there  should  be  negligence  of  the 
crass  description,  which  we  call  crassa  negligentia  ;  that  there 
should  be  gross  ignorance  ;  that  the  man  who  has  undertaken 
the  duty  of  an  attorney,  or  a  surgeon,  or  of  an  apothecary, 
as  the  case  may  be,  should  have  undertaken  to  discharge  a 
duty  professionally,  for  which  he  was  very  ill  qualified,  or 
if  not  ill  qualified  to  discharge  it,  which  he  had  so  negligently 
discharged  as  to  damnify  his  employer,  or  deprive  him  of  the 
benefit  which  he  had  a  right  to  expect  from  the  service." 
In  the  case  of  attorneys  alone,  even  greater  liberality  is  shown. 
In  the  same  case  Lord  CajVIPBELL  said :  "If  an  attorney  acts 
honestly  and  to  the  best  of  his  ability,  he  is  not  liable. 
Ordinarily,  however,  reasonable  skill  constitutes  the  measure 
of  his  engagement."     See  Sliilcock  v.  Passman,  supra. 

7.  To  determine  the  question  of  negligence,  we  have  only 
to  place  ourselves  in  the  position  of  the  person  whose  acts  we 
judge,  and  further  to  determine  the  measure  of  care  and 
diligence,  "it  is  necessary  to  distinguish,  first,  between  the 
obligations  of  persons  who  do,  and  of  those  who  do'  not,  stand 
in  peculiar  relations  to  one  another."  While  it  is  incumbent 
on  every  one  who  undertakes,  for  or  without  a  reward,  to  take 
care  of  any  pledge  or  perform  any  duty  or  labor,  to  use  in 
its  performance  such  care  as  men  of  common  sense  and  com- 
mon prudence,  however  inattentive,  ordinarily  take  of  their 
own  affairs ;  yet  if  the  service  be  gratuitous,  he  will  be  liable 
only  for  bad  faith  or  gross  negligence,  which  is  an  omission 
of  that  degree  of  care ;  if  on  the  other  hand  a  reward  or  fee 
is  received  or  expected,  then  a  greater  degree  of  diligence  is 
exacted.  Story  on  Bailment,  §§  174-5  ;  2  Hawk.  N.  C.  R. 
145;  2  Kent  Com.  568-573;  Skelleij  v.  Kahn,  1  Peck 
(111.),  170. 

8.  The  law  implies,  therefore,  a  contract,  on  the  part  of 
medical  men,  whether  the  service  rendered  be  gratuitous  or 
not,  to  discharge  the  duty  in  a  skilful  and  attentive  manner. 


NEGLIGENCE.  507 

and  the  law  will  redress  the  party  injured  by  their  neglect. 
If  the  service  is  performed  out  of  pure  favor  and  with  the 
consent  of  the  patient,  the  physician  is  engaged  for  only 
slight  care  and  diligence,^  but  to  the  exercise  of  this  degree 
he  is  firmly  held.  The  person  receiving  such  gratuitous  ser- 
vice is  then  bound  to  exercise  the  highest  degree  of  care. 

In  estimating  the  degree  of  care  exacted  of  the  physician, 
the  condition  of  the  patient  is  an  important  factor.  To  re- 
vert to  my  former  illustration  :  in  one  patient  there  is  but  a 
simple  fracture ;  in  the  second,  the  fracture  is  compound  ;  in 
the  third  it  is  comminuted,  and  the  limb,  besides,  is  the  seat 
of  an  erysipelatous  inflammation  at  the  time  of  the  injury. 
Now  if  the  surgeon  should  give  to  the  simple  fracture  the 
same  amount  of  care  that  the  comminuted  and  erysipela- 
tous limb  demands,  he  would  give  it  extraordinary  care,  and 
would  render  himself  liable  to  the  charge  of  amplifying  need- 
lessly about  the  limb,  and  probably  for  a  mercenary  purpose. 
He  would  have  accomplished  his  duty  when  he  had  properly 
dressed  the  limb  and  had  seen  it  again  on  the  second  or  third 
day.  In  the  compound  case,  he  should  see  the  patient  on 
the  first  or  second  day.  In  the  comminuted  and  complicated 
case,  his  duty  would  require  him  to  see  the  limb  perhaps  in 
the  course  of  a  few  hours  from  the  first  dressing.  When  he 
has  done  so,  at  least  so  far  as  the  visits  are  concerned,  he  has 
fulfilled  the  law  as  laid  down  by  Shepley,  J.,  in  Odlin  v. 
Stetson,  17  Maine,  244:  "When  a  person  offers  his  services 
to  the  public  in  any  business,  trade,  or  profession,  there  is  an 
implied  engagement  with  those  who  employ  him,  that  he 
will  perform  the  business  intrusted  to  him,  faithfully  and 
diligentl3^ 

9.  In  respect  to  human  life,  the  law  has  so  high  a  regard 
for  it,  that  it  will  not  impute  negligence  to  an  effort  to  pre- 
serve it,  unless  the  effort  is  made  under  such  circumstances 
as  to  constitute  recklessness,  in  the  judgment  of  prudent  per- 

1  "  A  person  who  undertakes  to  do  an  act  without  reward  or  consideration  is 
not  amenable  for  omitting  to  do  it,  even  though  special  damages  are  averred." 
Thorn  v.  Deas,  4  J.  R.  84. 


508  CIVIL   MALPRACTICE. 

sons.  "  Although  exposure  to  injury  for  the  purpose  of 
saving  property  is  negligence,  for  the  purpose  of  saving  hu- 
man life  it  is  not  so,  unless  such  is  regarded  rash  or  reck- 
less. Echert  v.  Long  Island  R.  R.  Co.,  43  N.  Y.  502. 
Therefore,  providing  a  surgeon  acts  according  to  the  rules 
of  his  art,  he  incurs  no  responsibility,  whatever  may  be  the 
result  of  his  operation  ;  and  even  if  it  may  be  asserted  that 
such  operation,  executed  more  skilfully,  might  prove  more 
advantageous  or  less  mischievous  to  the  patient.  Pushing 
medical  responsibility  beyond  certain  limits,  would  be  only 
to  deprive  patients  of  the  succor  of  art,  precisely  at  the 
moment  when  they  have  the  most  urgent  need  for  it.  For 
when  a  serious  accident  calling  for  immediate  aid  occurred, 
no  surgeon  would  venture  to  operate  upon  the  patient,  in  fear 
that  if  in  spite  of  his  efforts  the  results  proved  unfortunate, 
he  might  be  himself  accused  of  having  occasioned  them ;  and 
no  one  would  act  without  consultation,  giving  rise  to  loss  of 
precious  time  and  the  production  of  irreparable  mischief. 

10.  In  determining  what  constitutes  negligence  in  Medi- 
cine, the  improvements  that  have  taken  place  in  its  several 
departments,  and  which  are  still  constantly  taking  place,  are 
always  taken  cognizance  of.  Thus  many  forms  of  dressing 
in  surgical  cases,  which  a  few  years  ago  were  thought  to  be 
the  summit  of  perfection,  if  applied  now  by  a  surgeon  would 
be  considered  culpable  negligence  in  him.  Such,  doubtless, 
will  be  the  verdict  a  few  years  hence  in  respect  to  the  use  of 
the  double-inclined  plane,  in  the  treatment  of  fractures  of 
the  lower  extremity.  Cleveland  v.  Siner^  16  C.  B.  (N.  S.) 
399,  cited  in  Shearman  &  Redfield  on  Negligence,  is  an 
analogous  case.  "  The  defendants'  servant  was  employed  in 
making  an  opening  into  a  gas  main  in  a  thoroughfare,  using 
for  the  purpose  a  '  diamond  point '  chisel,  which  caused  par- 
ticles of  iron  to  fly  off,  and  thereby  endangered  passers-by. 
A  less  dangerous  mode  of  doing  the  work  would  have  been 
by  drilling  or  screening.  A  piece  of  iron  was  chipped  off  and 
struck  the  plaintiff  in  the  eye  and  injured  him.  Held,  that 
the  fact  that  the  accident  would  have  been  avoided  by  drilling 


NEGLIGENCE.  509 

or  screening  was  evidence  of  negligence ;  and  therefore,  that 
the  defendant  was  liable." 

In  closing  the  decision  in  N.  Y.  C.  R.  R.  Co.  v.  Locktvood, 
supra,  the  court  goes  on  to  say :  "In  deciding  whether  any 
party  has  been  negligent,  if  there  is  any  conflict  in  the  testi- 
mony, and,  ordinarily,  when  there  is  not,  all  the  facts  and 
circumstances  of  the  case  should  be  submitted  to  the  jury, 
with  instructions  that  in  deciding  whether  the  party  was 
in  the  exercise  of  ordinary  care,  or  was  grossly  negligent, 
they  are  to  consider  the  position  of  the  party,  his  business, 
his  duties  and  responsibilities ;  and  that  the  same  act  or 
omission  which,  under  some  circumstances,  would  not  show 
any  degree  of  negligence,  might  under  others  show  want  of 
ordinary  care,  and  under  still  different  circumstances,  might 
show  gross  negligence  :  and  the  question  should  be  settled 
by  the  jury  as  a  question  of  fact,  and  not  by  the  court  as  a 
question  of  law.  Hence  the  absurdity  and  injustice  of  assum- 
ing any  test  of  negligence,  or  of  contributory  negligence, 
which  is  made  to  apply  to  all  persons  at  all  times,  in  all 
places,  and  under  all  possible  circumstances,  as  certain,  con- 
clusive, and  incontrovertible  tests  of  such  negligence." 


510  CIVIL  MALPRACTICE. 


CHAPTER   XVIII. 

CONTRIBUTORY  NEGLIGENCE. 

1.  The  non-observance  of  certain  duties  incumbent  on  the 
patient,  or  upon  those  having  charge  of  him,  constitutes  con- 
tributory negligence. 

It  is  an  established  princijDle,  under  both  the  civil  and 
common  law,  that  to  entitle  a  party  to  recover  damages, 
alleged  to  have  been  sustained  in  consequence  of  the  negli- 
gence of  another,  there  must  not  only  be  negligence  in  fact, 
but  it  must  have  been  the  proximate  cause  of  the  injur3\  In, 
this  connection,  the  term  "  proximate  "  does  not  mean  the 
first  or  nearest  in  the  order  of  time,  but  the  first  or  nearest 
in  the  order  of  cause.  Cases  have  been  repeatedly  reversed 
v^here  this  distinction  has  not  been  observed.  Chicago,  ^c, 
R.  Co.  V.  Qoss,  17  Wis.  428. 

The  difficulty  lies  usually,  as  in  the  case  just  cited,  in  sep- 
arating the  '"''  j^Toximate  "  from  the  "  remote  "  cause.  The 
court  of  original  jurisdiction  held  that  Goss,  in  permitting 
"  his  cattle  to  run  at  large  in  the  vicinity  of  the  railroad, 
was  only  guilty  of  remote  negligence."  This  was  considered 
erroneous  b}^  the  appellate  court.  It  decided  that  the  per- 
mission to  run  at  large  in  the  vicinity  of  danger  was  this 
proximate  cause  of  the  injury,  and  therefore  remanded  the 
case  for  a  new  hearing. 

2.  In  suits  where  negligence  is  alleged,  "  ordinary  "  care  is 
required  of  the  plaintiff.  What  this  is  has  been  defined  to 
be  "that  degree  of  care  which  persons  of  ordinary  care  and 
prudence  are  accustomed  to   use  and  employ  under  similar 


CONTRIBUTORY  NEGLIGENCE.  611 

circumstances."      Cleveland^  ^c,  R.  R.  Co.  v.  Terry.,  8  Ohio 
(N.  S.),  570-581. 

Thus,  if  a  person  having  a  broken  arm  dressed  with  an 
initial  bandage,  is  requested  by  his  surgeon  to  call  in  the 
course  of  a  few  hours,  and  fails  to  do  so  for  several  days, 
when  gangrene  has  supervened,  it  would  be  a  contributory 
negligence,  for  which  he  could  hold  no  one  justly  responsible 
but  himself.  Or  if  he  is  requested  to  give  notice  of  the 
dressing,  or  the  other  mechanical  appliances  becoming  loos- 
ened or  otherwise  disturbed,  and  fails  to  do  so,  his  failure,  if 
injury  resulted,  would  be  looked  upon  as  the  proximate 
cause,  and  he  could  not  recover. 

"  A  surgeon  assumes  to  exercise  the  ordinary  skill  of  his 
profession,  and  is  liable  for  injuries  resulting  from  his  failure 
to  do  so ;  and  yet  if  his  patient  neglects  to  obey  the  reason- 
able instructions  of  the  surgeon,  and  thereby  contributes  to 
the  injury  complained  of,  he  cannot  recover  for  such  in- 
jury."     aeiselman  v.  Scott,  25  Ohio  (N.  S.),  86-89. 

The  case  cited  supra  was  alleged  to  be  one  of  malpractice 
in  the  treatment  of  a  swollen  ankle  and  diseased  foot  and 
ankle,  by  Dr.  Scott.  The  court  refused  to  instruct  the  jury 
as  requested  by  the  plaintiif.  The  instruction  asked  for 
ignored  the  doctrine  of  contributory  negligence.  The  court 
gave  the  instruction  modified  as  follows  :  — 

"  If  you  shall  find  that  the  defendant  directed  the  plaintiff 
to  observe  absolute  rest,  as  a  part  of  the  treatment  to  said 
foot,  and  that  direction  was  such  as  a  surgeon  or  physician  of 
ordinary  skill  would  adopt  or  sanction,  and  the  plaintiff  neg- 
ligently failed  to  observe  such  direction,  or  purposely  dis- 
obeyed the  same,  and  that  such  neglect  or  disobedience  ap- 
proximately contributed  to  the  injuries  of  which  he  com- 
plains, he  cannot  recover  in  this  action,  although  he  may 
prove  that  the  defendant's  negligence  and  want  of  skill  also 
contributed  to  the  injur3^  This  grows  out  of  the  doctrine 
that  a  party,  who  has  directly,  by  his  own  negligence  or  dis- 
regard of  duty,  contributed  to  bring  an  injury  upon  himself, 
cannot  hold  other  parties,  who  have  also  contributed  to  the 


512  CIVIL  MALPRACTICE. 

same,  responsible  for  any  part  thereof,  nor  does  it  make  any 
difference  that  one  of  the  parties  contributed  in  a  much 
greater  degree  than  the  other ;  the  injured  party  must  not 
have  contributed  at  all." 

The  jury  found  for  the  defendant,  and  the  case  was  ap- 
pealed. The  appellate  court,  Rix,  J.,  said  :  "  We  are  of 
ophiion  that  the  court  did  not  err  in  so  modifying  the  in- 
structions, requested  by  the  plaintiff,  whether  the  action  be 
regarded  as  based  upon  the  implied  contract  of  the  surgeon 
or  upon  tort.''''    Leave  refused. 

McIlvahste,  C.  J.,  and  Welch,  White,  and  Gilman, 
JJ.,  concurring. 

Plaintiffs  must  use  their  own  senses  ;  as  "  where  a  person, 
on  approaching  a  railroad  crossing  with  a  team,  does  not 
avail  himself  of  his  sight  or  hearing,  where  by  the  proper 
exercise  of  them  he  could  have  avoided  a  collision,  he  will 
be  considered  as  unusually  negligent  on  his  part,  though  the 
bell  was  not  continuously  rung  or  whistle  sounded."  Chi- 
cago ^  R.  I.  R.  R.  Co.  V.  McKean,  40  111.  218. 

3.  Upon  the  question  as  to  who  shall  sustain  the  burden  of 
proof,  when  contributory  negligence  is  inferred  from  any 
fact  brought  out  during  the  trial,  or  when  it  is  relied  on  as  a 
defence,  legal  authorities  differ  widely.  In  Illinois,  Indi- 
ana, Connecticut,  Massachusetts,  and  Maine,  it  is  held  that 
the  plaintiff  must  afl&rmatively  prove  he  was  not  guilty  of 
contributing  to  the  injury.  Thus  in  the  Aurora  Branch  R. 
R.  Co.  V.  Grimes.,  3  Peck,  585,  and  in  JDyer  v.  Talcott,  6  Peck, 
300,  "  it  is  incumbent  upon  a  party  seeking  to  recover  dam- 
ages for  a  loss  which  has  been  caused  by  negligence,  not 
only  to  prove  the  negligence  of  the  defendant,  but  also  to 
show  that  his  own  misconduct  has  not  concurred  in  produc- 
ing the  injury  complained  of;  and  if  it  should  appear  that 
both  parties  are  equally  in  fault,  the  aggrieved  party  cannot 
recover."     See  also  Crale7i,  ^c,  R.  Co.  v.  Fai/,  6  Peck,  558. 

The  Supreme  Court  of  Indiana  QJEvansville  ^  Craivfords- 
ville  R.  R.  Co.  V.  Hiatt,  17  Ind.  102)  held,  "  that  the  com- 
plaint must  aver  the  plaintiff's  freedom  from  negligence." 
Contra^  see  Scudder  v.  Crosson,  cited  herein. 


CONTEIBUTORY  NEGLIGENCE.  513 

In  Smith  v.  Smith,  2  Pick.  621,  the  court  says  that  "the 
action  cannot  be  maintained  for  negligence,  unless  the  plain- 
tiff can  show  that  he  used  ordinary  care,  for  without  that  it 
is  by  no  means  certain  that  he  himself  was  not  the  cause  of 
his  own  injury."  In  an  action  in  tort  or  in  contract,  where 
negligence  is  alleged,  the  rule  of  dut}'-  is  the  same.  Eaton  v, 
B.  ^  L.  R.  R.  Co.  11  Allen,  500.  See,  also,  Merrill  v.  Hamp- 
den, 26  Maine,  234 ;  Parh  v.  O'Brien,  23  Conn.  339 ;  Mur- 
phy V.  Beam,  101  Mass.  455. 

"  In  an  action  whose  gravamen  is  negligence,  it  is  the 
duty  of  the  plaintiff  to  show  a  case  clear  of  contributory 
negligence.  There  must  be  then  2^  primd  facie  case  resulting 
exclusively  from  the  wrong  of  defendant,  before  he  can  be 
called  to  answer."      Waters  v.  Wing,  59  Penn.  St.  211. 

The  question  is  not  yet  definitely  settled  in  the  New  York 
courts.  Thus,  in  Button  v.  Hudson  River  R.  R.  Co.  18  N. 
Y.  248,  the  court  declared  that,  "In  an  action  of  negligence, 
the  burden  is  on  the  plaintiff  to  prove  affirmatively  that  he  is 
guiltless  of  any  negligence  proximately  contributing  to  the 
injury.  Such  negligence  is  not  to  be  presumed,  and,  there- 
fore, direct  evidence  to  disprove  it  is  not  required  from  the 
plaintiff,  in  the  first  instance  ;  but  where  there  is  conflicting 
testimony  as  to  the  fact,  the  preponderance  must  be  with 
plaintiff  to  enable  him  to  recover."  On  the  other  hand,  in 
Benedetti  v.  Mauchin,  1  Hilton,  213,  it  was  held  that  "  the 
burden  lay  upon  the  defendant  to  prove  negligence  on  the 
part  of  the  plaintiff." 

4.  In  Iowa  the  doctrine  of  comparative  negligence  is  dis- 
carded ;  that  of  contributory  negligence  prevails.  In  an 
action  for  personal  injuries,  the  court  instructed  the  jury 
that  defendant  was  liable  for  his  negligence,  unless  they 
found  that  plaintiff  was  "equally  guilty  with  defendant." 
Held,  "  that  the  instruction  was  erroneous  as  announcing  the 
doctrine  of  comparative  negligence."  Johnson  v.  Tillson,  36 
Iowa,  89  ;  Baird  v.  Morford,  29  Iowa,  531. 

It  is  generally  presumed  that  "  a  man  is  bound,  no  matter 
in  what  he  may  be  engaged,  to  use  ordinary  care  for  his  own 
33 


514  CIVIL  MALPRACTICE. 

protection,"  and  therefore  when  contributory  negligence  is 
relied  on  as  a  defence,  the  defendant  must  be  prepared  to 
prove  that  the  plaintiff  did  not  exercise  ordinary  care.  In 
most  cases,  if  the  question  arises  at  all,  the  defendant  must 
affirm  it,  and  then  the  burden  is  on  him  to  furnish  the  proof. 
"  JEi  incumhit  prohatio  qui  dicit,  non  qui  negat.''^  In  John- 
son V.  Hudson  Biver  B.  B.  Co.  20  N.  Y.  65,  Denio,  J.,  said  : 
"  The  true  rule,  in  my  opinion,  is  this  :  The  jury  must  event- 
ually be  satisfied  that  the  plaintiff  did  not,  by  any  negli- 
gence of  his  own,  contribute  to  the  injury.  The  evidence 
to  establish  this  may  consist  in  that  offered  to  show  the  nat- 
ure or  cause  of  the  accident,  or  in  any  other  competent 
proof.  To  carry  a  case  to  the  jury,  the  evidence  on  the  part 
of  the  plaintiff  must  be  such  as,  if  believed,  would  authorize 
them  to  find  that  the  injury  was  occasioned  solely  by  the 
negligence  of  the  defendant.  It  is  not  absolutely  essential 
that  the  plaintiff  should  give  any  affirmative  proof  touching 
his  own  conduct  on  the  occasion  of  the  accident.  The  char- 
acter of  the  defendants'  delinquency  may  be  such  as  to  prove, 
primd  facie,  the  whole  issue ;  or,  the  case  may  be  such  as  to 
make  it  necessary  for  the  plaintiff  to  show,  by  independent 
evidence,  that  he  did  not  bring  the  misfortune  upon  himseK. 
No  more  certain  rule  can  be  laid  down." 

5.  The  doctrine  that,  in  case  of  an  injury  by  negligence, 
where  the  parties  are  mutually/  in  fault,  the  injured  party  is 
not  entitled  to  redress,  is  subject  to  certain  qualifications: 
viz.,  "  The  injured  party,  although  in  fault  to  some  extent  at 
the  time,  may,  notwithstanding  this,  be  entitled  to  reparation 
in  damages  for  an  injury  which  he  has  used  ordinary  care  to 
avoid ;  and  when  the  negligence  of  the  defendant  is  the  prox- 
imate cause  of  the  injury,  but  that  of  the  plaintiff  only  the 
remote  cause."  Kerwliaker  v.  Qleveland,^c.  B.  B.  Co.2)  Ohio, 
N.  S.  172.  "  Where  an  injury  happens  to  a  party  proxi- 
mately through  his  own  wrong,  he  cannot  recover  ;  but  where 
such  injury  happens  by  the  proximate  wrong  of  another,  he 
should  be  liable,  though  the  remote  negligence  of  the  injured 
party  may  have  contributed  to  produce  it."     Indianapolis  ^ 


CONTRIBUTORY  NEGLIGENCE.  515 

Cincinnati  R.  R.  Co.  v.  Caldwell^  9  Ind.  397.  Thus,  "  where 
a  party  has  been  injured  by  a  collision  upon  a  public  high- 
way, he  cannot  maintain  an  action  if  the  facts  show  that  he 
has  in  any  manner,  by  his  own  carelesness  or  neglect,  con- 
tributed to  or  caused  the  injur}^  of  which  he  complains." 
Morris  v.  Phelps  et  al.  2  Hilton,  38  ;  Cox  v.  Westchester 
Turnpike  Road.,  33  Barb.  414.  "  It  is  enough  to  defeat  the 
plaintiff,  if  the  injury  might  have  been  avoided  by  his  exer- 
cise of  ordinary  care  ;"  Shearman  &  Redfield  on  Neg.  §  34  ; 
unless  it  is  shown  that  there  has  been  wanton  or  wilful  or 
gross  negligence  on  the  part  of  the  defendant.  Chicago  ^ 
Miss.  R.  R.  V.  Patchin,  6  Peck,  198.  "  Though  a  defend- 
ant has  been  guilty  of  culpable  fault  or  negligence,  producing 
an  injury,  yet  if  his  act  was  not  wanton  and  intentional,  and 
the  plaintiff  by  his  own  misconduct,  or  want  of  ordinary  care, 
essentially  contributed  to  produce  the  result,  he  cannot  re- 
cover." Birge  v.  G-ardner.,  19  Conn,  507.  "  Slight  negli- 
gence does  not  absolve  defendant  from  use  of  care  and  all 
reasonable  efforts  to  avoid  injury."  St.  i.,  A.  ^  T.  H.  R.  R. 
Co.  V.  Todd,  36  -111.  409. 

This  question  is  apt  to  arise  under  a  diversity  of  perplexing 
forms.  Thus,  in  Chamberlin  v.  Morgan,  68  Penn.  St.  168, 
the  defendant  in  error  had  judgment  rendered  against  him 
for  malpractice  in  the  treatment  of  a  dislocated  joint.  Some 
time  after  the  attempted  reduction  Dr.  Richardson  was  called 
in,  who  proposed  to  put  the  patient  under  the  influence  of  an 
ansesthetic,  and  to  attempt  again  the  reduction.  But  the 
proehein  ami  replied,  "that  so  long  as  she  (the  patient)  was 
improving  so  fast  as  she  had  done  since  he  came  home,  he 
should  not  have  it  disturbed."  The  court  goes  on  to  say  : 
"  Had  Dr.  Chamberlin  proposed  this  experiment  there  might 
be  some  reason  to  hold  that  he  should  have  the  opportunity  of 
redeeming  his  mistake,  or  even  if  he  had  called  in  Dr.  Rich- 
ardson to  act  on  his  behalf.  Mr.  Morgan  merely  requested 
Dr.  R.  to  examine  his  daughter's  arm  and  give  his  opinion 
about  it.  That  did  not  oblige  him  to  adopt  his  advice  or  to 
incur  the  hazard  and  expense  of  another  operation.    He  owed 


516  CIVIL  MAIiPRACTICE. 

no  such  duty  to  Dr.  Chamberlin.  It  was  offered  to  prove 
that  the  injury  could  then  have  been  reduced.  But  how  was 
Mr.  Morgan  or  Hattie  to  have  known  this  ?  Had  the  ex- 
periment failed,  it  might^well  have  been  urged  that  as  she  was 
improving  she  ought  to  have  been  let  alone,  and  that  Dr.  C. 
was  relieved  from  all  responsibility  by  the  case  having  been 
taken  out  of  his  hands.    Therefore  t\\^  judgment  is  affirmed." 

The  opinion  was  given  by  Sharswood,  J.,  and  it  may  seem 
presumption  to  call  so  eminent  a  court's  decision  in  question  ; 
yet,  in  view  of  the  very  great  difficulties  under  which  sur- 
geons labor,  this  is  called  for.  The  record  does  not  give  us 
all  the  facts  of  the  case,  but  we  may  suppose  that  the  swell- 
ing, &c.,  at  the  first  attempted  reduction  was  so  great  that 
a  very  experienced  surgeon  may  have  been  in  doubt  as  to 
whether  a  dislocation  existed.  The  record  does  not  say  what 
joint  was  implicated,  so  we  will  hypothecate  the  case  upon 
the  shoulder  or  elbow.  Now,  after  the  swelling  has  subsided, 
the  patient  and  her  friends,  exercising  what  is  oftentimes 
improperly  their  right,  send  for  another  surgeon,  and  this 
simply  for  the  purpose  of  getting  an  opinion,  without  any 
notice  whatever  given  the  first  surgeon.  It  is  simple  injus- 
tice, which  patients  are  constantly  guilty  of.  The  duty  of 
the  patient  in  such  a  case  was  to  notify  the  first  surgeon  of 
counsel  being  desired  in  the  case,  when,  if  he  had  refused, 
they  might  have  called  in  another  surgeon.  Having  done  so 
without  such  notification,  the  defendant  in  error  should  not 
have  had  the  judgment  affirmed  against  him,  unless  his  neg- 
ligence was  wanton,  gross,  or  wilful. 

6.  Inasmuch  as  the  question  is  one  to  be  first  passed  upon 
by  the  jur}^,!  surgeons  relying  on  it  as  a  defence  should  insist, 
as  in  Hihhard  v.  Thompson,  109  Mass.  286,  that  the  jury  be 
instructed  that,  "if  it  be  impossible  to  separate  the  injury 
occasioned  by  the  neglect  of  the  plaintiff  from  that  occasioned 
by  the  neglect  of  the  defendant,  the  plaintiff  cannot  recover." 
It  is  likely  the  court  may  add  that,  "  if  however  they  can  be 

1  St.  L.,  A.  Sf  T.  H.  R.  R.  Co.  v.  Todd,  36  111.  409  ;  Cily  of  Chicajo  v.  Major, 
8  Peck,  349. 


CONTRIBUTORY  NEGLIGENCE.  517 

separated,  for  such  injury  as  the  plaintiff  may  show  proceeded 
solely  from  the  want  of  ordinary  skill  or  ordinary  care  of  the 
defendant  he  may  recover,"  it  will  be  a  point  of  value;  for  it 
states  the  ordinary  rule  as  to  the  negligence  of  the  plaintiff ; 
the  second  clause  states  the  proper  limitation  of  the  rule.  The 
court  goes  on  to  say  of  the  second  clause,  "  It  is  an  important 
limitation ;  for  a  physician  may  be  called  to  prescribe  for  cases 
which  originated  in  the  carelessness  of  the  patient ;  and  though 
such  carelessness  would  remotely  contribute  to  the  injury 
sued  for,  it  would  not  relieve  the  physician  from  liability  for 
his  distinct  negligence,  and  the  separate  injury  occasioned 
thereby."  The  same  rule  obtains  if  the  injury  results  from 
the  plaintiff's  carelessness  during  treatment. 

7.  In  respect  to  operations,  surgeons  are  to  remember  that 
"  evidence  that  the  plaintiff  requested  the  defendant  to  per- 
form the  act  which  caused  the  injury,  does  not  tend  to  prove 
contributory  negligence,  if  the  injury  was  not  a  natural  result 
of  such  act  carefully  performed."  Fish  v.  Wait,  104  Mass. 
71.  This  principle  may  be  usefully  applied  to  some  of  the 
operations  of  cojnplaisance  such  as  are  performed  in  con- 
tractions of  the  hand  and  foot.  Thus  an  operation  for  the 
relief  of  contraction  of  the  fingers,  caused  by  rheumatism  or 
as  the  result  of  a  congenital  vice,  will  be  quite  likely  to  de- 
prive the  patient  of  what  little  use  he  may  have  had  of  them. 
This  occurs  so  frequently  after  such  operations  upon  the  ten- 
dons of  the  fingers,  that  it  may  be  said  to  be  the  natural 
result  of  the  operation.  Of  this  fact  the  patient  should  be 
informed.  If  the  patient  then  requests  the  operation  he  is 
guilty  of  a  fatal  contributory  act.  On  the  other  hand,  such 
unfavorable  results  follow  so  seldom  after  tenotomy  of  the 
lower  extremity,  the  request  of  the  patient  to  have  the  opera- 
tion performed  would  not  be  contributory  negligence. 

So,  too,  the  removal  of  a  staphyloma  is  always  followed  by 
a  total  loss  of  sight ;  but  if  the  patient  requests  the  operation 
he  cannot  then  hold  the  surgeon  responsible  for  the  loss,  un- 
less proof  is  offered  that  the  defendant's  negligence  was  gross, 
wanton,  or  wilful. 


518  CIVIL  MALPRACTICE. 

8.  The  general  rules  bearing  upon  contributory  negligence 
admit  of  several  exceptions  and  qualifications,  chief  among 
which  are  those  relating  to  whom  they  may  not  apply.  As 
a  general  rule,  contributory  negligence  is  not  imputable  to 
insane  persons,  nor  to  persons  distracted  by  sudden  terror, 
drunkards,  and  persons  who,  from  their  tender  age,  are  not 
capable  of  exercising  a  proper  discretion.  In  such  cases,  "  if 
the  defendant  is  guilty  of  gross  negligence,  he  cannot  set  up 
a  trifling  negligence  or  inadvertence  of  the  plaintiff  as  a  de- 
fence."    Wharton  on  Neghgence,  §§  300,  301. 

In  The  Illinois  O.  B.  Co.  v.  Hutchinson,  47  111.  408,  it  is 
laid  down  that  even  an  intoxicated  man  is  not  excused  from 
the  use  of  care  for  his  own  protection  ;  yet  some  doubt  was 
expressed  as  to  the  degree  required  of  him  in  that  case. 

In  respect  to  infants,  his  honor  Judge  McAllister,  to 
whom  I  am  indebted  for  many  of  the  principles  presented  in 
this  connection  (^Tlie  Chicago,  ^c.  R.  R.  Co.  v.  Becker,  76 
111.  25,  Legal  News,  Sept.  11,  1875),  after  quoting  from 
Wharton  the  list  of  those  persons  to  whom  such  negligence 
is  not  imputable,  says :  "  By  the  general  term  '  infants,'  as 
one  of  the  class  to  whom  contributory  negligence  would  not, 
as  a  rule,  be  imputable,  the  author,  as  appears  by  the  con- 
text, does  not  mean  that  all  persons  under  lawful  age  are  to 
be  understood  as  belonging  to  such  class,  but  only  those  who, 
from  their  tender  age,  are  wanting  in  the  requisite  capacity 
to  exercise  discretion.  Whether  the  question  of  the  capacity 
of  children  of  observing  and  avoiding  danger  be  considered 
with  reference  to  contributory  negligence  on  the  part  of  the 
child  injured,  or  of  parents  or  guardians,  it  is  obvious  that  no 
definite  rule  of  law  can  be  laid  down  which  should  interfere 
with  the  jury,  judging  each  case  on  its  own  merits,  and  by 
its  particular  circumstances.  If  the  child,  from  its  age  and 
experience,  be  found  to  have  capacity  and  discretion  to  ob- 
serve and  avoid  danger,  it  should  be  held  responsible  for  the 
exercise  of  such  measure  of  capacity  and  discretion  as  it  pos- 
sesses. The  question  is  similar,  and  to  be  determined  by  the 
jury  in  the  same  way,  from  facts  and  circumstances  in  evi 


CONTRIBUTORY  NEGLIGENCE.  519 

dence,  as  where  the  capability  of  an  infant,  under  the  age  of 
fourteen  years,  to  commit  crime,  is  involved  in  a  criminal 
prosecution  at  common  law  against  such  infant.  On  the 
attainment  of  fourteen  years  of  age,  the  criminal  actions  of 
infants  are  subject  to  the  same  modes  of  construction  as  those 
of  the  rest  of  society ;  for  the  law  presumes  them  at  those 
years  to  be  doli  capaces^  and  able  to  discern  between  good 
and  evil.  But  there  is  no  inflexible  rule  which  governs 
where  the  question  arises  in  civil  cases  whether  contributory 
negligence  is  imputable.  As  stated  above,  it  is  in  each  case 
a  question  for  the  jurj'-,  to  be  determined  upon  the  particular 
circumstances  in  evidence."  The  judgment  was  reversed 
and  the  cause  remanded,  because  the  court  below  had  in- 
structed the  jury  "  that  the  law  does  not  require  that  a  boy 
of  six  or  seven  years  of  age  should  exercise  that  degree  of 
diligence  that  would  be  required  of  a  grown  person.  The 
court  therefore  instructs  the  jury,  that  although  they  may 
believe,  from  the  evidence,  that  the  deceased,  Frederick 
Becker,,  was  guilty  of  a  slight  degree  of  negligence,  yet  if  the 
jury  further  believe,  from  the  evidence,  that  the  defendant 
was  guilty  of  gross  negligence  and  thereby  caused  the  death 
of  said  Frederick  Becker,  the  jury  should  find  the  defendant 
guilty,  and  assess  such  damages  as  they  believe  would  be 
right." 

In  this  the  court  assumed  a  fact  which  it  was  the  function 
of  the  jury  to  pass  upon,  and  therefore,  for  this  error  and 
others,  the  judgment  was  reversed. 

If  the  child  in  this  case  had  no  discretion,  the  parents  or 
guardians  certainly  were  guilty  of  culpable  negligence  in 
permitting  him  to  be  in  the  way  of  danger.  So,  too,  a  child 
with  a  broken  arm,  if  permitted  by  the  parents  or  guardians 
to  let  his  arm  hang  down,  after  it  has  been  snugly  dressed 
by  the  surgeon,  instead  of  keeping  it  suspended  in  a  sling, 
arranged  by  the  surgeon  for  that  purpose,  and  an  erysipela- 
tous inflammation  should  follow  from  the  engorgement  of 
the  hand  and  arm  that  would  necessarily  attend  such  a  posi- 
tion of  the  arm,  should  not  recover  in  a  suit  for  damages. 


520  CIVIL  -  MALPEACTICE. 

The  doctrine  of  contributory  negligence  has  had  a  great 
many  interpretations,  being  one  upon  which  supreme  courts 
are  called  upon  at  every  term  to  pass.  The  decisions  are 
pretty  uniform  that  no  action  can  be  maintained  unless  the 
carelessness  of  the  defendant  is  of  such  a  gross  character  as 
to  savor  strongly  of  malicious,  vicious,  or  criminal  intent. 


NEGLIGENCE  OF  PHYSICIANS  AND  SURGEONS.  521 


CHAPTER    XIX. 

NEGLIGENCE   OF   PHYSICIANS  AND    SURGEONS. 

1.  A  PHYSICIAN  or  surgeon  attending  gratuitously  is  liable 
for  gross  negligence  only ;  Shearman  &  Redfield  on  Neg. 
§  432 ;  but  it  does  not  relieve  from  a  reasonable  degree  of  care. 
Shiells  V.  Blackhurne^  1  H.  Black.  159 ;  Nelson  v.  Macintosh^ 
1  Starkie,  188 ;  Wilson  v.  Brett,  11  M.  &  W.  113  ;  Pippin  v. 
Sheppard,  11  Price,  400;  Gladwell  v.  Steggall,  5  Bing.  N.  C. 
733.  "  The  less  the  payment  made  in  return  for  diligence, 
the  less  the  diligence  that  is  expected ;  and  if  no  payment  at 
all  is  made,  as  little  diligence  as  possible  is  usually  expected, 
though  it  may  be  that  some  is."     Amos,  Science  of  Law. 

2.  A  physician  may  contract  to  perform  a  cure  absolutely, 
but  the  law  will  not  imply  that  such  a  contract  follows  his 
mere  employment.  In  McCandless  v.  McWha,  the  court  of 
original  jurisdiction  assumed  that  the  defendant  was  bound 
to  effect  a  perfect  cure ;  but  the  appellate  court  repudiated 
this  doctrine,  and  stated  the  implied  contract  to  be  "  to 
treat  the  case  with  diligence  and  skill."  The  diligence  and 
skill  required  are  reasonable  or  ordinary  diligence  and  skill, 
such  as  are  manifested  or  possessed  by  the  profession  as  a 
body,  not  the  highest  degree,  not  that  degree  which  is  pos- 
sessed only  by  the  most  eminent  of  the  profession.  Rey- 
nolds V.  G-raves,  3  Wis.  416  ;  Patten  v.  Wiggin,  51  Maine, 
594 ;  Landon  v.  Humphrey,  9  Conn.  209 ;  Wood  v.  Olapp,  4 
Sneed,  65 ;  Carpenter  v.  Blake,  60  Barb.  488 ;  Bellinger  v. 
Craigue,  31  Barb.  534 ;  Briggs  v.  Taylor,  28  Vt.  180 ;  Lan- 

phier  v.  Phipos,  8  Carr.  &  P.  475 ;  3IcNevins  v.  Lowe,  40 


522  CIVIL   MALPRACTICE. 

111.  209 ;   Tefft  v.  Wilcox^  6  Kansas,  46 ;  Smothers  v.  Hanhs^ 
34  Iowa,  286 ;  Rich  v.  Piejyont,  3  Fost.  &  F.  35. 

3.  Honesty  on  the  part  of  the  practitioner  is  all  that  is 
required  to  release  him  from  the  responsibility  for  want  of 
skill ;  but  a  person  not  being  a  regular  practitioner,  assuming 
to  practise  as  such,  will  be  held  responsible  for  any  injury 
caused  by  his  ignorant  presumption.  Ruddock  v.  Lowe^  4 
Fost.  &  F.  519 ;  Rex  v.  Van  Butchell,  3  Carr.  &  P.  629. 
See  also  Rex  v.  /Sinipsoti,  "  where  professional  aid  might  be 
obtained,"  (cited  herein). 

4.  "  Common  sense  and  universal  experience  prescribe 
some  invariable  rules,  the  violation  of  which  may  generally 
be  called  gross  negligence."  S.  &  R.  on  Neg.  §  437.  Thus 
a  failure  to  remove  the  placenta  is  gross  negligence ;  Lynch 
v.  Davis,  12  Howard  Pr.  323  ;  unless  it  is  according  to  the 
practitioner's  "  school."  Bowman  v.  Wood,  1  G.  Greene 
(Iowa),  441. 

5.  Legal  writers  (Shearman  &  Redfield  on  Neg.  §  439) 
generally  assume,  "  that  a  physician  about  to  administer  an 
ansesthetic  is  bound  to  inform  himself  as  to  the  condition 
of  the  patient's  heart,  lungs,  or  other  organs,  which,  if  dis- 
eased, would  warn  a  prudent  physician  against  the  adminis- 
tration of  that  beneficent  agency  ;  "  by  which  we  are  to  infer 
that  a  physical  examination  should  be  resorted  to,  for  the 
purpose  of  determining  this  matter.  There  are  many  cir- 
cumstances in  which  time  would  not  permit  such  examina- 
tion ;  indeed,  the  physical  signs  contra-indicating  the  use  of 
the  angesthetic  are  not  always  made  out  with  positiveness  by 
practitioners  of  more  than  ordinary  skill ;  or  in  other  words, 
the  signs  pointing  to  different  organic  lesions  are  so  numer- 
ous, and  occur  so  infrequently,  the  ordinary  practitioner 
would  generally  not  be  able  to  apply  their  presence  satis- 
factorily to  many  cases.  It  is  very  true  that  a  momentary 
application  of  the  ear  to  the  chest,  and  the  touch  of  the  fin- 
ger to  the  pulse,  will  determine  whether  the  heart  is  act- 
ing normall}^,  and,  combined  with  palpation,  will  determine 
whether  the  lungs  are  acting  healthfully  ;  but  there  are  other 


NEGLIGENCE  OF  PHYSICIANS  AND  SURGEONS.         523 

Signs,  to  be  appreciated  at  a  moment's  glance,  in  the  most 
of  patients,  that  will  call  attention  to  whether  the  patient 
should  or  should  not  receive  a  more  attentive  physical  exam- 
ination before  the  administration  of  the  anaesthetic.  The 
danger  of  anaesthetics  is  very  much  overrated,  not  near  so 
many  dying  from  the  use  of  these  agents  as,  doubtless,  died 
before  their  use  from  the  shock  following  the  operation ;  be- 
sides this,  of  those  who  die  while  under  the  influence  of  an 
ansesthetic,  the  cause  of  death  is  rarely  such  as  could  be 
discovered  by  an  ante-mortem  examination.  These  patients 
die  of  epileptic  convulsions  (Broca,  Gazette  des  Hopitaux), 
of  which  the  surgeon  would  gain  no  knowledge  by  a  physical 
examination,  nor  would  it  contra-indicate  the  use  of  the  an- 
aesthetic if  he  did ;  or  they  die  of  syncope  (Loundes,  Brit. 
Med.  Jour.  May  9,  1868),  the  tendency  to  which  would  not 
be  discovered  by  a  physical  examination ;  or  they  die  of 
spastic  contraction  of  the  heart,  from  loss  of  blood  (Bilroth, 
Brit.  Med.  Jour.  June  13,  1868)  ;  or  from  convulsions,  re- 
sulting from  fatty  degeneration  of  the  heart,  in  which  the 
stethoscope  revealed  no  sign  of  this  disease  (Brit.  Med.  Jour. 
July  25, 1868)  ;  or  from  syncope,  from  exudation  beneath  the 
arachnoid,  the  heart  and  lungs  being  healthy,  where  only  a 
post-mortem  did  and  in  which  an  ante-mortem  examination 
could  not  reveal  the  true  cause  of  death  (Humboldt,  Med. 
Archives,  Nov.  1868)  ;  or  of  convulsions,  where  the  post-mor- 
tem showed  all  the  organs  healthy  (Med.  News  and  Library, 
June,  1866).  Deaths  under  anassthetics  may  be  arranged 
under  three  heads  :  those  in  which  the  anaesthetic  had  no 
effect  whatever,  the  patient  dying  under  but  not  through  the 
ansesthetic,  or  from  some  circumstance  accompanying  or  pre- 
ceding the  operation  ;  those  in  which  the  ancesthetic  acts  me- 
diately/, that  is,  through  the  escape  of  blood  into  the  wind- 
pipe during  operations  on  the  throat  or  about  the  mouth  ; 
and  third,  those  in  which  the  death  is  directly  attributable 
to  the  anassthetic,  in  which  the  pathology  cannot  be  made 
out  before  death.  We  hold,  therefore,  that  for  the  above 
reasons,   and  we  will   be  sustained   by  surgeons  generally, 


524  CIVIL  MALPRACTICE. 

the  examination  referred  to  by  legal  writers  is  unnecessary, 
and  is  only  called  for  in  exceptional  cases,  such  as  would  be 
known  by  their  general  physical  characteristics.  In  giving 
anaesthetics,  especially  chloroform,  the  physician  should  place 
the  patient  in  a  recumbent  posture,  and  see  that  there  is  no 
constriction  from  the  clothing  about  the  throat,  chest,  and 
abdomen.  The  patient  should  not  take  anything  into  the 
stomach  for  some  hours  previous  to  the  use  of  the  ansesthetic, 
unless  in  very  small  quantity. 

Especial  care  should  be  taken  never  to  administer  an 
ansesthetic  to  a  woman,  except  in  the  presence  of  another  or 
in  the  presence  of  her  immediate  relatives.  The  case  that 
first  called  attention  to  the  importance  of  this  rule  is  referred 
to  in  Wharton  &  Stille's  Med.  Jurisp.,  vol.  2,  part  I.  §§ 
245-248,  where  much  of  the  evidence  of  the  prosecuting 
witness  may  be  found.  From  a  published  account  of  the 
trial  and  conviction  of  the  defendant.  Dr.  B.,  we  learn 
that  ether  was  given  for  the  purpose  of  obviating  pain  in  the 
extraction  of  a  tooth.  Subsequently  a  most  atrocious  charge 
was  preferred  against  him.  Upon  this  he  was  tried,  no  wit- 
ness appearing  but  the  plaintiff,  and  on  her  testimony  alone, 
he  was  convicted  by  a  jury,  one  of  the  members  of  which,  it 
is  said,  remarked  before  he  had  heard  a  word  of  the  defence, 
"  D — n  him,  he  is  a  guilty  fellow;  we'll  sweeten  him." 

Immediately  after  the  charge  was  made,  the  defendant 
urged  that  Dr.  H.,  the  family  physician,  and  Dr.  J.  K.  M — 1, 
should  institute  an  examination,  that  by  this  means  the  fal- 
sity of  the  charge  might  be  made  manifest.  But  as  in  Walsh 
V.  Sayre^  this  personal  examination,  so  vital  to  the  interest 
of  the  defendant,  was  resisted.  It  was  then  proposed  that 
Dr.  H.  and  any  physician  he  might  choose  to  select,  should 
do  this  thing.  This  also  was  refused.  Finally,  it  was  pro- 
posed that  Dr.  H.  alone  should  make  an  examination.  This 
too  was  rejected.  No  "  precedent  "  had  yet  been  established 
compelling  a  personal  inspection. 

At  the  time,  the  correctness  of  the  verdict  was  much 
doubted,  and  upon  this  ground  a  pardon  was  subsequently 
granted. 


NEGLIGENCE  OF  PHYSICIANS  AND  SURGEONS.         525 

A  case  similar  to  the  foregoing  is  repoi-ted  in  the  West- 
ern Jurist  for  November,  1874.  The  salient  points  of  the 
evidence  in  the  case  is  appended,  to  show,  among  other  things, 
that  the  ordinary  petit  jury  is  entirely  incompetent  to  try 
issues  in  matters  of  science,  especially  in  matters  pertaining 
to  medical  science. 

"  The  prosecutrix  was  a  robust  and  healthy  girl.  Age 
seventeen  years.  Slept  with  a  daughter  of  the  defendant, 
about  of  same  age ;  in  an  adjoining  room  south,  there  lodged 
a  man  and  his  wife,  and  in  the  adjoining  room  west,  with 
an  unfastened  door  between,  there  lodged  the  defendant  and 
other  persons  in  other  beds ;  that  she  retired  about  ten 
o'clock,  p.  M.,  and  after  a  short  time  fell  asleej) ;  that  during 
the  night  the  defendant  made  an  assault  upon  her,  removing 
her  from  the  bed  for  that  purpose  ;  that  he  said  to  her  he 
was  Dr.  G.  (the  defendant)  ;  that  she  tried  to  force  him 
away  but  could  not ;  that  she  experienced  a  ringing  sensa- 
tion m  the  head,  felt  weak,  drowsy,  and  sleepy,  but  did  not 
sleep  any  more  that  night ;  that  the  ringing  in  the  head  lasted 
a  day  or  two  ;-that  the  assault  was  committed  on  the  night  of 
June  23,  1857  ;  that  she  told  no  one  of  the  occurrence  until 
about  the  last  of  December,  1857,  and  that  although  awake 
during  the  remainder  of  the  night  upon  which  the  assault 
was  made,  she  made  no  outcry.  She  gave  birth  to  a  child 
on  the  26th  March,  1858.  She  first  thought  there  had  been 
two  assaults  and  had  told  others  so,  but,  on  reflection,  was 
sure  that  there  was  but  one.  She  never  saw  chloroform 
before,  but  smelled  it  on  the  trial  and  believes  the  smell  to 
be  like  that  she  experienced  on  the  night  of  the  23d  of  June. 
She  weighs  one  hundred  and  thirty  pounds,  was  in  good 
health,  and  had  always  enjoyed  good  health.  Did  not  smell 
medicine  when  first  awake,  but  did  after  defendant  left  her 
room,  in  about  six  minutes,  &c.,  &c. 

"  The  defendant  was  a  physician.  His  daughter,  a  highly 
intelligent  young  lady,  with  whom  plaintiff  slept,  swears  that 
she  (the  daughter)  slept  on  the  front  side  of  tlie  bed  ;  was 
not  disturbed  in  the  night,  and  smelled  no  odor  of  medicine 


526  CIVIL   MALPRACTICE. 

of  any  kind ;  saw  nothing  unusual  in  the  appearance  of  the 
prosecutrix  next  morning.  The  defendant  was  just  recover- 
ing from  a  long  and  severe  attack  of  phlegmonous  erysipelas, 
the  left  hand  very  sore,  and  poulticed,  the  neck  stiff  and  sore, 
and  the  right  hand  also  sore  and  in  ulcers.  No  one  about 
the  house  heard  any  noise  or  disturbance  during  the  night, 
after  the  parties  had  retired.  The  partitions  between  the 
rooms  were  of  boards ;  had  so  shrunk  that  there  were  cracks 
between  the  boards  of  half  an  inch  in  width,  — boards  were 
one  inch  in  thickness  ;  had  stood  for  twenty  years ;  the  bed 
was  of  ordinary  size. 

"  Verdict  of  the  jury,  Gruilty  ;  motion  for  a  new  trial  over- 
ruled. 

"  Motion  in  arrest  of  judgment  continued  to  next  term,  by 
agreement  of  counsel." 

And  this  is  the  boasted  "  trial  by  jury  !  " 

6.  In  Howard  v.  Grove7\  28  Maine,  97,  the  surgeon  was  held 
responsible  for  an  error  in  judgment,  but  this  is  not  the  gen- 
eral rule.  According  to  later  authorities,  the  principle  is 
that,  "  like  an  attorney,"  he  "  is  not  answerable  in  a  given 
case  for  the  errors  of  an  enlightened  judgment;"  that  is,  if 
he  is  ordinarily  intelligent  in  his  profession,  he  is  not  respon- 
sible^ except  he  should  try  experiments  to  his  patient's  dam- 
age. Carpenter  v.  Blake,  60  Barb.  488 ;  Tefft  v.  Wilcox,  6 
Kansas,  46  ;  Patten  v.  Wiggin,  51  Maine,  594  ;  Slater  v.  Ba- 
ker, 2  Wilson,  359;  Rexv.  Long,  4  Carr.  &  P.  423;  Rex 
V.  Martin,  3  Ibid.  211 ;  note  4 ;  Sharswood's  Black,  b.  iii. 
p.  25. 

7.  If  the  services  rendered  are  gratuitous,  and  the  physician 
wishes  to  leave  the  case,  he  must  give  "  reasonable  notice  ;  " 
if  paid  for,  he  must  continue  them  "  till  the  emergency  he 
was  called  to  meet  is  past."  Shearman  &  Redfield  on  Neg. 
§  441. 

8.  The  onus  prohandi  in  case  of  a  suit  against  a  physician 
or  surgeon  for  negligence,  is  on  the  plaintiff.  He  must  prove 
by  a  preponderance  of  evidence,  not  only  the  neglect,  but  also 
the  want  of  skill,  if  that  is  alleged  in  the  declaration.     It 


NEGLIGENCE  OF  PHYSICIANS  AND  SURGEONS.         627 

will  not  be  proper  for  liim  to  give  evidence  on  any  question 
of  neglect  or  want  of  skill,  unless  it  is  already  alleged  in  the 
preparatory  pleadings.  Bemus  v.  Jloivard,  3  Watts,  255 ;  1 
Greenleaf  on  Evid.  §  66.  On  the  other  hand,  where  the  dec- 
laration alleges  want  of  possession  of  skill  rather  than  the 
neglect  to  iise  skill,  the  defendant  may  present  evidence  of 
his  general  skill,  and  where  there  is  a  doubt  as  to  the  skil- 
fulness  of  his  treatment  in  the  case,  this  evidence  will  be 
useful ;  for  if  he  shows  he  possesses  it,  it  will  be  presumed 
he  used  it.  If  his  general  skilfulness  is  not  called  in  ques- 
tion, he  does  not  need  to  furnish  such  evidence,  for  if  he  does 
it  will  be  refused  as  being  incompetent.  A  certain  course  of 
treatment,  approved  by  some  surgeons,  may  nevertheless  be 
condemned  by  a  jury,  if  the  weight  of  authority  is  against 
it.  Too  frequently,  juries  regard  themselves  as  authority  on 
surgical  questions,  and  so  make  the  testimony  very  prepon- 
derating in  favor  of  the  plaintiff. 

9.  It  is  the  duty  of  the  patient  to  conform  to  the  neces- 
sary prescriptions  of  his  physician,  and  if  he  will  not,  or, 
under  the  pre3sure  of  pain,  he  cannot,  he  has  no  right  to 
hold  his  physician  responsible.  The  defendant  under  all  cir- 
cumstances has  a  right  to  show  that  the  habits  of  his  patient, 
or  that  various  constitvitional  diseases  with  which  he  may  be 
afflicted,  prevented  or  retarded  recovery  in  a  given  case. 

10.  In  Simonds  v.  Henry,  39  Maine,  155,  the  jury  was  in- 
structed, that  if  the  physician  had  used  all  the  knowledge 
and  skill  to  which  the  art  of  medicine  had  at  that  time  ad- 
vanced, that  would  be  all  that  would  be  required  of  him. 
The  appellated  court  said :  "  It  is  undoubtedly  correct,  that 
no  more  would  be  required  of  him.  But  upon  legal  princi- 
ples could  so  much  be  required  of  him  ?  We  think  not.  If 
it  could,  then  every  professional  man  would  be  bound  to  pos- 
sess the  highest  attainments,  and  to  exercise  the  greatest  skill 
in  his  profession.  Such  a  requirement  would  be  unreason- 
able. 

"  The  instructions  given  were  erroneous,  and  a  new  trial 
must  be  had. 


528  CIVIL   MALPRACTICE. 

"  Exceptions  sustained.     New  trial  ordered^ 

Prosecutions  for  malpractice  occur  so  frequently,  that  no 
surgeon,  however  respectable  or  eminent,  has  the  assurance, 
in  all  his  cases,  that  he  will  receive  either  gratitude  or  re- 
ward from  his  patients;  indeed,  the  more  he  is  informed 
upon  the  history  and  calamities  of  surgery,  the  more  he  fears 
for  the  results  of  his  surgical  practice.  On  the  other  hand, 
it  is  very  evident  that  the  profession  is  crowded  with  incom- 
petent and  careless  men,  and  these  should  be  held  responsible 
by  the  law ;  but,  unfortunately  for  the  profession,  these  are 
the  ones  that  most  frequently  escape  suits  of  this  character. 

To  avoid  the  annoyance  of  such  suits,  surgeons  should 
above  all  things  be  honest  with  their  patients,  apprising  them 
of  the  difficulties  of  the  case,  and  the  uncertainty  of  perfect 
results.  They  ma3^do  this  without  being  "  forward  to  make 
gloomy  prognostications."  They  should  be  "  candid  in  re- 
gard to  their  deficiencies,  claiming  no  more  than  they  can 
perform,  no  more  knowledge  than  they  possess  ;  claiming  no 
more  for  their  art  than  belongs  to  it.  Especially  when  act: 
ing  as  experts  in  courts  of  law,  they  should  remember  that 
other  "  surgeons  set  broken  limbs  as  the}^  write  their  names, 
after  a  fashion  of  their  own,"  and  that  good  results  have 
and  may  be  obtained  by  a  variety  of  methods  of  treatment. 
So  long  as  these  are  amenable  to  the  rule  of  common  sense, 
they  should  not  be  decried,  as  is  too  often  the  case. 

Surgeons  should  look  carefully  to  their  appliances,  instruct- 
ing their  patients  and  nurses  as  to  their  uses,  remembering 
that  they  are  not  familiar  with  these  things,  hence,  will  need 
explanations  and  directions  in  plain  English,  and  need  them 
more  than  once.  If  anything  arises  that  seems  to  them 
wrong,  or  which  they  do  not  comprehend,  they  should  be 
instructed  to  give  the  surgeon  instant  notice. 

When  the  jjatient  has  recovered  so  as  to  leave  his  bed,  he 
should  be  directed  to  be  careful  of  his  limb,  and  give  it  some 
artificial  support  for  some  time  after  it  is  supposed  to  be 
cured. 

If  possible  the  surgeon  should  have  one  or  more  disinter- 


NEGLIGENCE  OF  PHYSICIANS  AND  SURGEONS.  529 

ested  witnesses  present  to  observe  his  omissions  and  commis- 
sions and  his  reasons  for  the  same.  This  can  easily  be  done 
in  cities,  and  most  villages,  but  in  the  country  it  is  quite 
different ;  yet  here  he  can  explain  the  case  to  the  more  in- 
telligent friends  and  neighbors  of  the  patient.  Call  atten- 
tion to  the  fact  that  a  fractured  limb  is  not  as  marble  or 
wood,  to  be  adjusted  and  keyed,  so  as  to  remain  immovably 
fixed  during  the  process  of  repair ;  but  that  it  is  a  living 
organ,  endowed  -svith  nerves,  and  requiring  constant  nutri- 
tion, which  may  be  fatally  interfered  with  by  bandages  too 
tightly  applied. 

If  after  all  this  the  annoyance  of  a  suit  should  follow,  get 
the  best  legal  talent  the  country  affords  ;  seek  for  experts 
among  truthful,  honest  physicians  ;  secure  men  who  are  able 
in  their  profession,  yet  who  are  not  ashamed  to  acknowledge 
the  deficiencies  of  their  art ;  see  that  your  counsel  compre- 
hends the  case  ;  comprehend  it  yourself  in  all  its  details. 

Under  no  circumstances  should  such  suits  be  compromised. 
Surgeons,  after  performing  their  duty,  owe  it  to  their  pro- 
fessional brethren  to  let  the  matter  be  tried  by  the  letter  of 
the  law,  trusting  that  if  juries  give  unjust  verdicts  against 
them,  judges,  whose  duties  it  is  to  review  the  case,  and 
whose  function  is  to  sift  evidence  and  to  judge  equitably, 
will  probably  remedy  the  evil,  by  remanding  for  a  new  trial, 
which  if  there  be  right  on  the  side  of  the  surgeon,  is  nearly 
equivalent  to  a  verdict  in  his  favor. 

When  there  is  a  remedy  provided  for  the  defendants'  costs 
in  such  suits,  where  plaintiffs  fail  to  sustain  their  case,  phy- 
sicians will  then  have  that  protection  in  the  performance  of 
their  arduous  duties,  which  is  justly  and  equitably  their  right. 

34 


INDEX 


ABANDONMENT    OF   PATIENT,   if  obtained  by  fraud   does  not 

release,  241-245. 
ABSCESS,  SCROFULOUS,  case  of,  303  et  seq. 
ABSORPTION,  INTERSTITIAL,  case  of,  292,  302. 
ACCOUNT   BOOKS,  not  evidence  as  to  visits  to  patients,  222. 
ACROMION,  fracture  of,  29,  399. 

ACTION,  contributory  negligence  does  not  touch  the  cause  or  right    f  , 
but  only  the  measure  and  amount  of  damages,  74. 

ex  contractu^  124. 

ex  delicto,  125.  '        • 

lies  against  a^  jihysician  for  gross  ignorance,  as  well  as  for  negli- 
gence, 17,  274. 

not  maintainable  for  unskilfulness  without  negligence,  232. 

statute  of  Pennsylvania,  on;  139. 

two  actions  lie,  for  personal  injury,  339. 

who  entitled  to  recover  damages,  139. 
ADAMS,  case  of,  401. 

ADJUSTMENT    OF   FRACTURES,  162,  409. 
ADMINISTRATOR,  husband  as,  cannot  sue,  337. 
ADVICE,  not  given  under  professional  employment,  62. 
AFTER-BIRTH,  "  Botanic  "  practice  in  the  management  of,  278. 

prolapsed  womb  taken  for,  276. 
AGENT,  principal  liable  for  acts  of,  113,  291,  353. 

not  liable  for  acts  of,  344. 
AGNEW,  on  anchylosis  of  wrist  and  fingers,  83. 

on  fracture  of  the  neck  of  the  femur,  293. 
ALLEGATA    ET  PROBATA,  must  arrri^e,  283. 
AMPUTATIONS,  alleged  malpractice  in,  253. 

error  prevalent  in  regard  to,  418. 

in  compound  dislocations,  206,  209. 

in  compound  fractures,  129,  253. 


532  INDEX 

AMPUTATIONS  —  Continued. 

instruments  used  in,  253-257. 

methods  of,  420. 

of  the  breast,  331. 

point  of  election,  419. 

required,  from  badly  dressing  fractures.  111. 

rules  for,  142,  254,  255,  418. 

time  for,  132,  419. 
ANESTHETICS.     (See  Chloroform.) 
ANiESTHETICS,  danger  of,  398,  523. 

Hamilton  on  the  use  of,  397. 

Gross  on  the  use  of,  397. 

rules  for  the  administration  of,  522. 

supposed  deaths  from,  523. 
ANCHYLOSIS,  21,  30,  83,  102,  204,  207,  403,  497. 

Agnew  on,  83. 

Bigelow  on,  207. 

Hamilton  on,  82,  83. 

false,  497. 

of  the  ankle,  204  et  seq. 

of  the  elbow,  403. 

of  the  fingers,  83,  102. 

of  the  shoulders,  21-30. 

of  the  wrist,  83,  102. 

true,  498. 
ANKLE-JOINT,  alleged  malpractice  in  the  treatment  of  injuries  near, 
176  et  seq. 

anchylosis  of,  204. 

compound  dislocation  of,  203. 

compound  fracture  of,  203. 
APOPHYSES,  deformity  the  usual  sequence  of  fractures  of,  415,  42L 
ARGUMENT   OF    COUNSEL,  object  of,  71. 
ARTERY,  basilic,  290. 
ASHURST,  on  circular  compression  by  initial  bandage,  407. 

on  prognosis  in  fractures,  493. 

on  setting  of  fractures,  409. 

on  shortening  after  fractures,  493. 

on  treatment  of  fractures  of  the  femur,  412. 
ASSENT    OF   PATIENT,  if  obtained  by  fraud,  is  no  defense,  241. 
ASSENT    OF  WIFE  is  assent  of  husband,  332. 

ASSUMPSIT,  physician   cannot  recover  for  services  unskilfully  per- 
formed, 256  et  seq. 
ATLEE,  on  dislocation  of  the  shoulder,  225. 


INDEX.  •  533 

ATKOPHY    OF   MUSCLES,  following  dislocation  of  knee,  251. 

following  fractures,  47,  85,  165-167. 
ATTORNEYS,  responsibility  of,  77,  216,  500. 

BAILMENT,  freedom  from  error  not  demanded,  32. 

ordinary  diligence,  definition  of,  32. 

physician  does  not  warrant,  32,  43,  120,  192,   201,  209,  291. 

requisite  skill,  18,  41,  66,  174,  187,  191,  243,  260. 

(See  Care,  Diligence,  Negligence,  Physician,  Skill.) 
BAKER,  on  initial  bandage,  51. 
BANDAGES,  atrophy  from  the  application  of,  47,  165-167. 

Bell  on  the  use  of,  162. 

danger  from  the  use  of,  48,  63,  115,  407. 

disuse  of,  in  severe  inflammation,  115,  168. 

in  dislocations,  226. 

initial,  50,  58,  63,  406. 

perineal,  417. 

Plaster  of  Paris,  471. 

starch,  471. 

use  of,  158,  163  n.,  167,  168,  406. 
BANDAGING,  absurd,  47,63,  111,406. 
BARRATRY,  320. 

BASILIC  ARTERY  AND  VEIN,  290. 
BATHING,  alleged  malpractice  in,  343. 
BEDS,  fracture,  416. 
BED-SORES,  417. 

BELL,  on  dressing  fractures  of  lower  extremity,  162. 
BELLEVUE  HOSPITAL,  cases  treated  at,  463,  479-489. 
BI6EL0W,  on  anchylosis,  207. 

on  compound  dislocations,  206. 

on  passive  motion,  208. 

on  treatment  of  compound  fractures,  207. 
BLACKMAN,  on  absurd  bandaging,  49,  50. 

on  paralysis  in  fractures,  49,  50. 
BLEEDING,  alleged  malpractice  in  the  operation  of,  289. 
BLISTER,  in  the  treatment  of  delayed  union,  86. 
BOOKS,  account,  in  evidence,  222. 

medical,  in  evidence,  186,  280. 
BOTANIC  PRACTICE,  in  dislocation  of  the  elbow,  227. 

in  fever,  384  et  seg. 

in  obstetrics,  278. 
BOUGIES,  injuries  from,  334. 
BREAST,  amputation  of,  331. 


534  INDEX. 

BRODIE,  on  counter-irritation,  356. 
BRYANT,  on  Plaster  of  Paris  dressing,  472, 
BUCK,  apparatus  for  fracture  of  the  femur,  414. 

on  extension,  414. 
BURDEN  OF  PROOF,  in  contributory  negligence,  36,  112,  113,  512. 

on  defendant  in  certain  cases,  199,  333,  514. 

on  plaintiff,  33,  222,  291,  295,  330,  526. 

CALLUS,  forcible  fracture  of,  190,  232. 

formation  of,  99. 
CALOMEL,  in  fractures,  171. 
CARE,  a  question  of  law  and  fact,  41,  502. 

highest  degree  not  required,  62,  77,  187,  256,  260,  279. 

is  of  relative  import,  138. 

ordinary  ov  reasonable,  18,  32,  43,  174,  214,  260,  280,  295,  510. 
CARIES.     (See  Necrosis.) 
CARNOCHAN,  on  synovial  fluid,  316. 
CHARGE  TO  JURY,  when  may  be  refused,  247. 
CHELIUS,  on  fracture  of  the  radius,  163,  164. 
CHILDREN,  negligence  not  imputable  to,  518. 
CHLOROFORM,  alleged  deaths  from,  523. 

danger  from,  overrated,  523. 

rules  for  administration  of,  522. 

use  of,  in  fractures  and  dislocations,  397  et  seq. 

use  of,  prejudices  against,  398. 
CHOREA,  in  fractures,  493. 
CHOSE  IN  ACTION,  338. 

code  rule,  340. 

common  law  rule,  339  et  seq. 

dies  with  the  person,  338. 

not  transferable,  338. 

rule  of,  relative  to  husband,  wife,  infant,  and  servant,  339. 

when  survives,  340  et  seq. 

who  may  sue  for,  339. 
CIVIL  MALPRACTICE,  active  and  passive,  17. 
CLAIMS- COUNTER.     (See  Counter-claims.) 
COAPTATION  OF  FRACTURES,  162,  409. 

CODE,  general  denial  under,  puts  at  issue  all  the  allegations  of  the  com- 
plaint, 198. 
CODE  OF  ETHICS,  7,  15,  119,  226. 
COLLES'  FRACTURE,  82,  430. 
COMPENSATION,  physicians  entitled  to  reasonable,  256. 

physician  must  show  possession  and  use  of  skill,  if  denied,  199. 

physician  not  entitled  to,  if  negligent,  257. 


INDEX.  535 

COMPLAISANCE,  operations  of,  517. 
COMPLICATIONS,  in  dislocations,  401. 

in  fractures,  417,  492. 
COMPOUND  FRACTURES,  amputation  in,  129. 
COMPRESSION,  CIRCULAR,  danger  of,  48,  6       Ul,  406. 
CONDYLES,  deformity  the  usual  sequence  of  fractures  of,  415,  426. 

of  femur,  fractures  of,  447. 

of  humerus,  fractures  of,  425  e    seq. 

of  femur,  table  of  fractures,  447. 

of  humerus,  table  of  fractures  of,  425-427. 
CONFLICT  OF  TESTIMONY,  verdict  will  not  be  disturbed  on  ac- 
count of,  ISO. 
CONSULTATIONS,  duty  of  physicians  in,  15,  226. 
CONTRACT,  liability  for  physicians'  services,  382. 

must  be  proved  as  alleged,  122. 

not  to  cure,  18,  32,  43,  105,  120,  191,  201,  209,  211,  291. 

on  the  part  of  the  physician,  what  required  by  law,  18,  32,  43,  7  7, 
121,  137,  187,  191,  201,  209,  211,  328. 

Tindal,  C.  J.,  on,  125. 

to  practice  according  to  avowed  system,  18,  19,  279,  329. 

to  use  reasonable  care  and  diligence,  18,  43,  137,  187,  209,  243, 
260,  295. 
CONTRACT,  JOINT,  ought  to  be  proved,  189. 
CONTRACT,   SPECIAL,  must  be  proved  as  laid,  122. 

not  to  cure,  except  bv,  43,  121,  192,  202,  211. 
CONTRIBUTORY  NEGLIGENCE.     (See  Negligence.) 
CONTUSIONS,  inflammatory  softening  from,  301. 
CORNEA,  alleged  malpractice  in  the  treatment  of,  261. 

leucoma  of,  261  et  seq. 

opacity  of,  261  et  seq. 

staphyloma  of,  262  et  seq. 
CORONOID  PROCESS,  fracture  of,  434. 
COUNSEL,  object  of  his  argument,  71. 

COUNTER-CLAIMS,  admits  plaintiff's  demand,  but  seeks  to  reduce 
it,  200. 

in  same  suit  constitutes  but  one  trial,  35,  200. 

may  exceed  plaintiff's  demand,  200. 
COUNTER-EXTENSION,  danger  of  making,  117,  185,  413. 

methods  of  making,  185,  410,  412. 

not  to  be  made  in  certain  cases,  117,  177,  180,  182,  412. 
COUNTER-IRRITATION,  death  from,  353,  364. 
COURTS  OF  EQUITY,  307  et  seq. 
COVERTURE,  action  survives  to  husband,  341. 


536  INDEX. 

CREPITUS,  false,  27,  400. 

philosophy  of,  30,  399. 

rational  sign  of  fracture,  30,  399. 

true,  30.  399. 
CRIMINAL  MISCONDUCT,  liability  for,  357. 
CROSS-DEMAND,  33,  200. 
CURE,  failure  to,  not  conclusive  as  to  want  of  skill,  78. 

not  warranted,  except  by  special  contract,  43,  121,  192,  202,  211. 
CUSTOMS,  how  far  surgeons  must  conform  to,  240,  249. 

DAMAGES,  a  question  of  fact  for  the  jury,  38. 

commensurate  to  the  injury  sustained,  40,  342. 
condition  of  injured  party  to  be  considered,  39. 
contributory  negligence,  effect  of,  on,  74. 
defendant  may  recoup,  200. 
excess  of,  258. 
for  death,  145. 
for  expenses,  39,  223. 
for  injury,  39,  223,  342. 
for  lost  time,  39,  223. 
for  pecuniary  loss,  39,  145,  223. 
for  suffering,  39,  223,  342. 
liability  for  want  of  using  skill,  199. 
manner  of  proof,  38. 
measure  of,  39,  73,  250,  258,  392. 
must  be  proven  like  any  other  fact,  38. 
•  not  allowed  at  common  law  if  death  ensued,  139. 
rule  of,  250,  338,  342. 

statute  of  Indiana  differs  from  that  of  New  York,  343. 
statutory  enactment  in  the  State  of  Pennsylvania,  139. 
sufficiency,  39. 

to  be  proven  like  any  other  fact,  38. 

verdict  not  to  be  set  aside  where  there  is  no  certain  measure,  258. 
vindictive,  may  be  given,  in  certain  cases,  145. 
vindictive,  not  to  be  given,  343. 
DEA.TH,  from  counter-irritation,  353,  364. 

from  the  use  of  lobelia,  386. 
DECLARATIONS,  actions  for  malpractice,  being  ex  delicto,  differ  from 

actions  ex  contractu^  125. 
for  injury,  must  allege  that  the  injury  was  occasioned  without  the 

fault  of  the  plaintiff,  113. 
general  allegation  sufficient,  119. 
must  be  proved  as  laid,  122. 


INDEX.  537 

DEFENDANT,  burden  of  proof  sometimes  on,  199,  333,  514. 

may  give  evidence  of  skill,  242,  277. 

may  recoup  his  damages,  200. 

may  show  assent  of  plaintiff  to  abandon  care  of  plaintiff,  241. 

not  to  give  evidence  of  skill,  221,  226. 
DEFORMITY,  in  fractures  of  the  lower  end  of  radius,  82,  432. 

usual  result  after  fracture  of  apophyses,  425-427. 

usual  result  after  fractures  of  condyles,  415,  426. 
DELAYED  UNION,  blistering  in  the  treatment  of,  86,  94. 

cases  of,  86,  400. 

causes  of,  493. 

no  evidence  of  a  want  of  skill  or  diligence,  86-101. 

treatment  of,  86,  94,  95. 
DELIRIUM  TREMENS,  417. 
DELTOID  MUSCLE,  wasting  of,  226. 
DIAGNOSIS,  defined,  405. 

difficulties  in,  118,  158,  167,  396. 

skill  in,  396. 
DILIGENCE,  a  question  of  law  and  fact,  41,  502. 

omitting  to  use  does  not  lay  a  foundation  for  a  new  trial,  258. 

ordinary,  Story  on,  32,  214,  280. 

required  in  producing  testimony,  258,  392. 

what  required,  18,  43,  103,  137,  187,  209,  243,  260,  279,  295. 
DIPLOMA,  jomna/acie  evidence  of  skill,  19,  275. 
DISCOVERIES,  valuable,  in  medicine  never  kept  secret,  377. 
DISLOCATIONS,  alleged  malpractice  in  the  treatment  of,  225. 

apt  to  recur,  227. 

bandages  in,  226,  418. 

compound,  203. 

diagnosis  in,  226,  401. 

Dugas  on  dislocation  of  shoulder,  404. 

evidence  of  reduction,  237. 

•false  crepitus  in,  30,  401. 

simulated,  227,  404. 

treatment  of,  24,  417. 

use  of  sling  in,  239,  418. 
DORSEY,  on  shortening  after  fractures,  192. 
DOUBLE-INCLINED-PLANE,  177,  178,417. 
DRESSINGS,  dextrine,  471. 

immovable,  movable,  409,  471. 
Plaster  of  Paris,  471. 
starch,  471. 


538  INDEX. 

DROPSY,  forbids  extension,  117. 

in  fractures,  117,  128,  178. 
DUGAS,  on  diagnosis  of  dislocated  shoulder,  404. 
DUTY,  not  necessax-y  to  allege  it  in  the  declaration,  125. 

of  patients,  18,  79,  193,  247,  511. 

of  physicians  in  their  intercourse  with  patients  of  others,  119. 

of  surgeon  to  make  a  second  visit,  109. 

performance  of  presumed,  199. 

EADS'  CASE,  302. 

"  ECLECTIC  PRACTICE,"  in  dislocation  of  the  elbow,  227. 

in  fever,  384  et  seq. 

in  obstetrics,  277. 
EDUCATION,  REGULAR,  not  required,  18,  19,  279,  329,  334. 
ELBOW-JOINT,  alleged  malpractice  in  the  treatment  of,  47,  227. 

anchylosis  of,  55  et  seq.,  401  et  seq. 

dislocations  of,  227,  231,  234,  250. 

fractures  of,  apt  to  be  followed  by  bad  results,  402,  426,  427,  434. 
ELLENBOROUGH,  C.  J.,  on  unskilfulness  and  negligence,  233,  359. 
ELONGATION    OF   LIMBS,  after  fractures,  413. 
EMBRACERY,  crime  of,  287. 

ENTRIES,  made  by  parties,  not  receivable  as  evidence,  222. 
EQUITY,  COURTS  OP,  will  give  defendant  leave  to  make  personal 

inspection,  307  et  seq. 
ERROR,  to  compare  professional  with  mechanical  skill,  191. 

to  instruct  jury  that  it  was  not  material  whether  defendant  was 
or  was  not  skilful  in  his  profession,  242. 
ERROR  OF  JUDGMENT,  not  malpractice  when  applied  to  a  man 
skilled  in  medicine,  274. 

physicians  not  responsible  for,  43,  209,  215,  500. 
ERYSIPELAS,  after  absurd  bandaging,  48,  63,  111. 

alleged  malpractice  in  the  treatment  of,  350. 

complicating  treatment,  417. 
ESTOPPELS,  mutual,  201. 

plaintiff  having  no  claim,  defendant  cannot  recoup,  200. 
ETHER.     (See  Chlorofokm.) 
ETHICS,   CODE   OF,  7,  15,  119,  226. 

obligatory  on  members  only,  7. 
ETHICAL   MALPRACTICE,  cases  of,  4,  7,  14,  115. 

definition  of,  1. 
EVIDENCE,  cannot  be  given  to  vary  facts  admitted  in  pleadings,  34. 

competency  of,  38,  347. 

entries  in  account  books,  not  i-eceivable  as,  222. 


INDEX. 


539 


EVIDENCE  —  Continued. 

general  rules  must  govern,  307, 

may  go  to  a  single  count  in  tlie  declaration,  345. 

medical,  its  nature,  186. 

medical  books  admissible  in,  280. 

medical  books  should  be  admissible,  186. 

must  sustain  verdict,  261. 

newly  discovered,  110,  258. 

newly  discovered,  must  be  true,  110. 

of  general  character  ma}^  be  rebutted,  284. 

of  general  skill  of  physician,  competent,  244. 

of  general  skill  of  phj^sician,  not  competent,  14,  243. 

of  success,  admissible,  357. 

of  success,  not  admissible,  243. 

rules  of,  303,  347. 

what  raaj^  and  what  may  not  go  to  the  jury,  347. 
EXAMINATION   OF  INJURIES,  rules  for,  396  e<  seq. 
EXAMINATION,  PERSONAL,  not  a  trespass,  304. 

resisted,  118,  304. 
EXPERIENCE,  its  value  overrated,  186. 
EXPERIMENTS,  must  not  be  made,  190,  249,  522. 
EXPERTS,  alone  to  testify  to  nature  and  course  of  disease,  195. 

agreement- of,  conclusive  as  to  matter  in  dispute,  142. 

cannot  express  opinion  on  the  case  under  trial,  40. 

cannot  express  opinions  on  points  of  law,  40. 

cannot  express  opinion  as  to  the  merits  of  a  case,  323,  325. 

may  express  opinions  on  hypothetical  state  of  facts,  9,  40,  142. 

may  express  opinions  on  admitted  state  of  facts,  9,  219,  323. 

may  express  opinions  on-  matters  of  science,  324. 

skill  may  be  shown  by,  244. 

to  testify  to  facts,  37. 

to  testify  as  to  skilfulness  of  operations,  304. 
EXTENSION,  not  to  be  made,  in  certain  cases,  117,  177,  180,  182,412. 
EXTENSION,  COUNTER,  danger  of,  117,  412. 

impracticable  in  certain  cases,  185,  186,  412. 

methods  for  securing,  185,  410. 

not  to  be  made,  in  certain  cases,  117,  177,  180,  182,  412. 

when  required,  411. 
EYE,  alleged  malpractice  in  the  treatment  of,  261,  269,  273. 

FACT,  admitted,  cannot  be  denied  by  same  party  in  same  case,  35. 

impliedly  averred,  may  be  traversed  as  if  it  was  expressly  averred, 
198. 


540  INDEX. 

FACT,  SCIENTIFIC,  in  certain  cases  rejected,  195. 
FEES,  effect  of,  on  allegation  of  negligence,  108,  193,  269. 

effect  of  payment  of,  62,  108,  193,  201,  202,  269. 

paid,  not  to  be  considered  in  award  of  damages,  223. 

physician  entitled  to  reasonable,  256. 
FELON,  alleged  malpractice  in  the  treatment  of,  347. 
FEMUR,  alleged  malpractice  in  tbe  treatment  of  injuries  of,  115. 

deformity  after  fractures  of,  441-447,  465. 

shortening  after  fractures  of,  115,  117,  465,  493. 

tables  of  fractures  of,  441-447,  466-470. 

treatment  of  fractures  of,  412. 
FERGUSON,  on  difficulties  in  the  treatment  of  fractures,  192. 
FEVER,  "  Botanic  "  practice  in,  385  et  seq. 
FIBULA,  table  of  fractures  of,  451,  452. 
FOOT,  angle  of,  205. 
FRACTURES,  amputation  in,  129,  253. 

Colles\  82,  430. 

comminuted,  495. 

complications  in,  417,  492. 

compound,  98. 

compound-comminuted,  92,  127,  495. 

crepitus  in,  399,  400. 

danger  of,  in  old  persons,  412. 

difficulties  in  diagnosis  of,  396  et  seq.,  404. 

difficulties  in  the  treatment  of,  192,  404. 

immovable-movable  dressings  in,  409,  471. 
"  impacted,  crepitus  absent  in,  400. 

extension  not  to  be  made  in,  412. 

inflammation  in,  how  reduced,  161. 

into  joints,  difficult  to  cure,  48,  403,  492. 

into  joints,  followed  by  pysemia,  130. 

into  joints,  prognosis  not  easily  determined,  495. 

obliquity  of,  only  determined  hy  post  mortem  examination,  179. 

Plaster  of  Paris,  471. 

rheumatism  following,  80. 

rules  for  examination  of,  162,  396. 

setting  and  dressing  of,  162,  409.  ■ 

shortening  after,  115,  117,  465,  493. 

should  not  be  disturbed  unnecessarily,  163. 

starch  bandage  in,  471. 

transverse,  may  be  overlooked  by  surgeons  of  skill,  168. 

treated  at  Bellevue  Hospital,  463,  478. 
FRACTURE-BEDS,  416. 


INDEX.  541 

FRACTURE-BOX,  208. 

FRAUD,  if  consent  to  abandon  patient  is  obtained  by,  does  not  release 
surgeon,  241,  245. 
not  to  be  presumed,  199. 
FROST-BITES,  gangrene  from,  321  et  seq. 

GAMGEE,  on  circular  compression,  408. 

GANGRENE,  alleged  malpractice  in  the  treatment  of,  321. 

from  absurd  bandaging,  48,  63,  111,  408. 

from  frost-bite,  321. 

treatment  of,  408. 
GASTROCNEIMIUS,  action  of,  in  fractui-e  of  leg,  206. 
GELATIO,  gangrene  from,  321  ei  seq. 
GLENOID   CAVITY,  fracture  of,  22. 

GRATUITOUS   SERVICE,  does  not  relieve  surgeon,  193,  269. 
GREGORY,  on  elongation  of  limb  after  treatment  for  fracture,  41 '-. 
GROSS,  alleged  case  of  malpractice,  318. 

on  initial  bandage,  407. 

on  leucoma,  268. 

on  staphyloma,  268. 

on  treatment  of  fracture  of  tibia,  411. 

HALE,  LORD,  on  manslaughter,  336,  359. 
HALL,  case  of  alleged  malpractice,  261. 

on  staphyloma,  26  7. 
HAMILTON,  on  anchylosis  of  wrist  and  fingers,  after  Colles'  fracture, 
82. 

on  backward  dislocation  of  radius  and  ulna,  229,  231. 

on  Plaster  of  Paris  dressing,  490-492. 

on  prognosis  in  fractures,  494. 

on  puncture  of  hip-joint,  314. 

on  shortening  after  fractures,  494. 

on  treatment  of  fractures  of  the  leg,  411. 
HAMILTON'S  Fracture  Tables,  421-463,  490-492. 
HARPER'S  CASE,  delayed  union,  400. 
HEEL,  retraction  of,  in  fracture  of  the  leg,  205. 

ulceration  of,  in  fractures  of  lower  extremity,  41 7. 
HEMORRHAGE,  SECONDARY,  318. 
HIP-JOINT,  alleged  puncture  of,  303  et  seq. 
HOLTHOUSE,  deformity  after  fracture  of  shaft  of  femur,  465. 
HOMEOPATHY,  assumptions  of,  2. 
HOSPITALS,  not  responsible  for  negligence  of  nurses,  when,  344. 


642  INDEX. 

HUMERUS,  condyles  of,  426  et  seq. 

fractures  of,  421  et  seq, 

fracture  of  condyles  of,  426. 

Tables  of  fractures,  4:21  et  seq. 

treatment  of  fractures  of,  416. 
HUNTER,  on  dressing  of  fractures,  162. 
HUSBAND  AND  WIFE,  must  be  joined  in  suit,  202,  337,  340 

statute  of  New  York,  337. 
HYDE'S  Fracture  Tables,  463,  466-470. 
HYDE,  on  deformity  after  fracture  of  the  femur,  465. 
HYPOTHETICAL  QUESTIONS,  9,  40,  142,  186. 

IDIOCY,  alleged  from  medical  ti'eatment,  381  el  seq. 
IGNORANCE,  "gross,"  actionable,  357. 

no  defence,  274. 

not  error  in  judgment,  274. 

physician  liable  for,  190. 

physician  not  liable,  if  he  acts  with  an  honest  intention,  390. 

physician  not  liable  if  he  prescribes  rightly,  393. 
INFLAMMATION,  chronic,  of  joints,  204. 

excessive,  contra-indicating  ti'eatment,  168,  169. 

erysipelatous,  from  absurd  bandaging,  48,  63,  111. 
INITIAL  BANDAGE,  danger  of ,  48,  63,  111,  406. 
INJURY,  the  greater  the,  more  care  required,  138. 
INJURIES,  PERSONAL,  two  actions  lie  at  common  law,  339. 
INSPECTION,  PERSONAL,  not  a  trespass,  304. 

opinion  of  Jones,  J.,  304  et  seq. 

resisted,  118,  304,  524. 
INSTRUCTIONS,  183,  188,  203,  209. 

error  to  instruct  that  it  was  not  material  whether  defendant  was 
or  was  not  skilful,  242. 

fees  paid  physician  for  services,  no  part  of  claim  in  suit  for  mal- 
practice, 223. 

in  respect  to  damages,  338,  342. 

may  be  given  in  the  absence  of  counsel,  223. 

must  not  compare  professional  skill  with  mechanical,  191  ei  seq. 

must  not  be  too  rigid,  192. 

must  state  the  law  correctly,  103. 

recovery  cannot  be  had  for  services  not  performed  with  skill  and 

diligence,  2o&  et  seq. 
to  jury  must  fall  within  the  proofs,  345. 
written,  may  be  given  in  absence  of  counsel,  223. 
INSTRUMENTS,  used  in  amputations,  253-257. 


INDEX.  643 

INSURER,  surgeon  not  an,  32,  43,  120,  192,  201,  209,  212,  291,  329, 
331. 

INTEMPERANCE,  interfering  with  the  cure,  195. 

INTERSTITIAL  ABSORPTION,  case  of,  302. 

INTOXICATING  DRINKS,  by  jurors,  during  consideration  of  ver- 
dict, 224. 

JARVIS'  ADJUSTER,  25,  412. 
JOINTS,  fractures  into,  48,  203,  403,  495. 

inflammation  of,  48,  130,  203,  403. 

injuries  too  apt  to  be  followed  by  bad  results,  48,  130,  203,  403, 
495. 

stiffening  of,  from  inflammation  in  sheaths  of  tendons,  82,  497. 

stiffening  of,  in  rheumatic  cases,  80. 
JONES,  J.,  opinion  of,  on  personal  inspection,  304  et  seq. 
JUDGMENT,  of  a  competent  court  conclusive,  198. 
JUDGMENT-ERRORS  OF,  not  actionable,  209,  274. 

of  an  ignorant  person,  not  excusable,  274. 
JUDKINS,  on  initial  bandage,  48. 

JURIES,  corporations  and  professional  men  have  little  chance  before, 
185. 

finding  same  way  twice,  new  trial  not  granted,  180. 

have  opinions  and  laws  of  their  own,  185,  260. 

incompetent  to  try  issues  in  science,  186. 

influenced  by  sympathy,  260. 
JUROR,  affidavit  of,  admissible  to  sustain  verdict,  224. 

conversation  with,  by  witness,  287. 

improper  conduct  of,  sufficient  to  set  aside  verdict,  224. 
JURY,  instructions  to,  on  general  liability  of  physicians,  52,  345. 

instructions  as  to  the  circumstances  of  the  respective  parties,  392. 

must  deciJe  from  the  evidence,  want  of  skill,  239. 

often  usurp  functions  of  court  and  witness,  185. 

prejudices  of,  185,  260,  524. 

prejudices  of,  sufficient  cause  to  set  aside  verdict,  260. 

KNEE-JOINT,  alleged  malpractice  in  the  treatment  of  injuries  near, 
123. 
dislocation  of,  251. 
KNOWLEDGE,  want  of,  creates  responsibility,  274. 
KRACKOWIZER,  on  puncture  of  hip-joint,  314. 

LAW,  Mohammedan,  279. 
policy  of  the,  7. 


544  INDEX. 

LEADING  QUESTIONS,  improper,  350. 

what  constitutes,  350  et  seq. 
LEG,  Bell  on  treatment  of  fractures  of,  162. 

compound  fractures  of,  127,  169. 

deformity  after  fractures  of,  449-463, 

extension  as  generally  understood,  not  to  be  applied  in  fractures 
of,  185,  411. 

fractures  of,  123,  449-463. 

Gross  on  the  treatment  of,  411. 

Hamilton  on  the  treatment  of,  411. 

Montgomery  on  the  treatment  of,  412. 

shortening  after  fractures  of,  449-463,  493,  494, 
LEUCOMA,  Gross  on,  268. 

Hall  on,  267. 

Levis  on,  266, 

Morton  on,  268. 
LIABILITY,  must  not  be  governed  by  arbitrary  rules,  211  et  seq. 

rule  of,  201. 
LIBEL,  for  words  uttered  against  a  physician,  7. 
LIGAMENT,  tibio-tarsal,  function  of,  496. 
LISTON,  on  consecutive  shortening,  495. 

on  reduction  of  backward  dislocation  of  elbow,  229. 
LOBELIA,  alleged  manslaughter  by  administration  of,  384. 
LOCK-JAW,  in  compound  dislocations  of  the  ankle-joint,  209. 

McCANDLESS  v.  McWHA,  analysis  of  case  by  Cole,  J.,  104  et  seq. 
McFAELAND'S  CASE,  false  anchylosis,  498. 
MAGGOTS,  in  wounds,  170. 
MAINTENANCE,  320. 
MALPRACTICE,  active  and  passive,  17. 

civil,  criminal,  and  ethical,  1. 

in  what  it  consists,  140,  282,  499. 

legal  definition  of,  140,  282. 
MANDAMUS,  the  proper  remedy  to  compel  admission  into  a  society,  7. 
MANSFIELD,  LORD,  on  responsibility  of  attorneys,  216. 
MANSLAUGHTER,  alleged,  from  the  administration  of  lobelia,  384. 

alleged  from  counter-irritation,  353,  364. 
mismanagement  in  obstetric  cases,  277. 
use  of  rectal  bougie,  334. 

when  malpractice  amounts  to,  353,  390. 
MASTER  AND  SERVANT,  113,  291,  353, 
MEASURE   OF  DAMAGES,  40,  73,  250,  258,  392. 
MEASURE  OF  ENGAGEMENT,  43. 


INDEX.  545 

MEASUREMENT,  conditions  of  faithful,  440. 

in  dislocations  and  fractures,  398. 
MEDICAL  BOOKS,  admissibility  of,  280,  281. 

should  be  admitted  in  evidence,  186. 
MEDICAL   CASES,  alleged  malpractice  in,  353-394. 
MEDICAL  EVIDENCE,  mere  reference  to  authority,  186. 
MEDICINE,  LEGITIMATE,  282. 

MEDICINES,  their  properties  a  proper  subject  for  medical  inquiry,  15. 
MERCURY,  alleged  malpractice  in  the  use  of,  394. 
MISFEASANCE,  definition  of,  499. 

liability  for,  282. 
MISCONDUCT,  of  patient,  in  a  measure  relieves  surgeon,  193,  510. 
MONTGOMERY,  on  fracture  of  the  leg,  412. 
MOORE,  on  ulnar  luxation,  432. 
MORTIFICATION.     (See  Gangrene.) 
MORTON,  on  staphyloma,  268. 
MOTION,  on,  court  will  order  personal  inspection  of  injury,  303  et  seq. 

passive,  208. 
MOTT,  on  compound  dislocations  of  ankle,  209. 

on  shortening  after  fractures  of  the  femur,  117. 

on  stiffening  of  fingers  and  wrist  after  CoUes'  fracture,  82. 
MUSSEY,  on  absurd  bandaging,  48. 

on  fracture  of  os  humerus,  47. 

on  over-extension,  413. 
MYRRH,  as  a  dressing  in  amputations  and  lacerated  wounds,  254,  259. 

NATURAL   SCIENCES,  influence  of,  on  the  learned  professions,  194. 
NECROSIS,  in  fractures,  87,  99,  170,  254. 
NEGLIGENCE,  active  or  aflirmative,  67. 

aggravation  of  injury  by  plaintiff's,  510  ei  seq. 

application  of  rule  that  injury  must  be  the  proximate  cause  of,  73, 

610. 
application  of  rules  of,  to  injuries  causing  death,  354,  358. 
a  question  of  mingled  law  and  fact,  41,  502. 
basis  of  rule  denying  relief  to  one  injured  by  his  own,  514. 
burden  of  proof  ,  in  an  action  for,  in  certain  cases  on  defendant, 
199,  333,  514. 
in  respect  to  plaintiff's  freedom  from,  36,  112,  113,  512. 
on  plaintiff;  33,  112,  222,  291,  295,  330,  526. 
causing  death  liability  for,  354,  358. 
comparative,  513. 

consists  in  misfeasance  as  well  as  nonfeasance,  282. 
contributor)/,  36,  64,  71,  112,  196,  395,  510. 
35 


7 


546  INDEX. 

NEGLIGENCE  —  Continued. 

culpable,  physician  liable  for,  3&3. 

deemed  proximate,  wlien,  511. 

defined,  499. 

degrees  of,  503-509. 

distinction  between  fraud  and,  499. 

gross,  or  crassa  negligentia,  constructio'n  of,  357,  503-509. 

not  imputable  to  children,  518. 

in  allowing  children  to  be  in  the  way  of  danger,  67,  519. 

in  judging  of,  regard  must  be  had  to  the  growth  of  science,  43, 

188,  194. 
liability  of  attorneys,  77,  216,  500. 

of  physicians  and  surgeons,  523-527. 
measure  of  damages,  40,  73,  250,  258,  392. 
mere  failure  to  cure,  not  sufficient  to  raise  presumption  of,  32, 43, 

120,192,201,212,291,329,331. 
must  be  proximate  cause  of  injury,  73,  510. 
not  to  be  presumed,  199. 

not  to  conform  to  well-established  rules,  240,  508,  524. 
ordinary,  defined,  505. 
permissive,  67,  519. 

physician  not  liable  for  neglect  of  nurses,  343. 
question  of,  to  be  decided  by  the  court,  502. 

to  be  left  to  the  jury,  when,  503. 
remote,  510. 

rule  for  estimating  degree  of,  507. 
slight,  505. 

who  may  sue  for,  139,  337, 
NERVES,  injured  in  dislocations,  252. 
injured  in  fractures,  48. 
injured  in  venesection,  290. 
NEW  MATTER,  cannot  be  proved  under  a  general  denial,  200. 

must  be  specially  pleaded,  198. 
NEW  TRIAL,  not  granted  on  account  of  newly-discovered  evidence, 
except,  &c.,  257. 
not  granted,  unless  verdict  is  manifestly  contrary  to  evidence, 

180. 
not  granted  when  two  juries  find  same  way,  except,  &c.,  180. 
when  granted,  12,  326. 
NEWTON,  case  of  alleged  malpractice,  47. 
NITRATE  OF  SILVER,  its  action  on  contagious  matter,  272. 
NONFEASANCE,  distinction  between  it  and  misfeasance,  282,  499. 
NONSUIT,  237. 


INDEX.  547 

NON-UNION,  causes  of,  493,  497. 
treatment  of,  87,  99,  497. 

OATMAN'S  CASE,  115. 

OBESITY,  diagnosis  rendered  difficult  by,  148. 

OBSTETRICS,  alleged  maliiractice  in,  276. 

OLECRANON,  fracture  of,  402,  433. 

ONUS   PROBAND!,  on  plaintiif,  36,  112,  199,  222,  291,  295,  330,  526. 

OPERATION,  whether  skilful,  is  a  matter  of  science,  304. 

OPERATIONS   OF  COMPLAISANCE,  517. 

OPHTHALMIA,  contagious,  269. 

OPHTHALMIC   CASES,  alleged  malpractice  in  the  treatment  of,  261. 

OPINIONS,  not  evidence,  unless  it  be  of  experts,  219. 

on  matter  of  fact,  not  allowed  except  by  experts,  219. 

only  a  reference  to  authority,  186. 
OVER-EXTENSION,  danger  of,  413. 

Mussey  on,  413. 

Post  on,  413. 

Sayre  on,  413. 

PARKER,  on  synovial  fluid,  816. 

PARTY,  cannot  affirm  and  deny  same  fact  in  same  case,  35. 

not  obliged  to  criminate  himself,  286. 

situation  and  condition  of,  to  be  considered  by  jury,  392. 
PATELLA,  fracture  of,  448. 

Table  of  Fractures,  448,  449, 
PATIENT,  may  discharge  physician  without  notice,  79. 

must  conform  to  necessary  prescriptions,  18,  193,  511,  527. 

must  exercise  judgment  in  his  own  case,  79,  247,  512. 

must  exercise  judgment  in  the  selection  of  his  physician,  32. 
PATIENTS,  in  hospitals,  are  not  to  be  treated  negligently,  344. 
PERINEAL  BANDAGE,  412,  417. 

PERSONAL  INJURIES,  two  actions  lie  at  common  law  for,  339. 
PERSONAL  INSPECTION,  not  a  trespass,  304. 

re.-isted,  118,  304,  524. 
PHYSICIAN,  competency  to  testify  as  an  expert,  219. 

duty  of,  in  his  intercourse  with  patients  of  another  physician,  119, 
226. 

ethics,  code  of,  15,  119,  215,  226. 

has  a  remedy  at  law  to  collect  fees,  382. 

has  discretionary  powers,  248,  333. 

immaterial  by  whom  retained,  114,  124,  126, 

implied  contract  of,   18,   43,  137,  174,  187,  191,  201,  209,  211, 
328. 


648  INDEX. 

PHYSICIAN  —  Continued. 

is  entitled  to  reasonable  compensation,  256. 

is  to  use  reasonable  and  ordinary  care,  18,  32,  43,  108,  138,  173. 

181,  245,  328. 
legal  definition  of,  4,  19,  121. 
legitimate,  definition  of,  282. 
may  show  competency,  244,  277. 
may  not  show  competency,  221,  226. 
medical  definition  of,  282. 

must  apply  in  practice  what  is  settled,  249,  329. 
must  exercise  an  enlightened  judgment,  45,  188,  194. 
must  exercise  his  best  judgment,  43,  209,  215,  328. 
must  not  leave  patient  without  reasonable  notice,  241,  247,  501. 
must  not  obtain  discharge  by  fraud,  241,  246. 
not  a  warrantor,  32,  43,  120,  192,  201,  211,  291,  329,  331. 
not  obliged  to  practice,  500. 

not  responsible  for  malpractice  of  nurses,  343  et  seq. 
not  responsible  for  malpractice  of  others,  78. 
not  responsible  for  errors  of  judgment  in  matters  of  doubt,  32,  43. 

209,  393. 
not  to  hold  patents  for  medicines   nor   surgical   appliances,   2, 

377,  n. 
power  over  patients  discretionary,  248,  333. 
proof  of  competency,  244,  277. 
regular,  definition  of,  282. 
responsibility  of,  17,  32,  43,  77,  191,  201,  209,  242,  256,  260,  328, 

345,  393,  500, 
should  inform  patient  of  danger,  241. 

should  not  always  inform  patient  of  his  true  condition,  350. 
to  apply  in  practice  what  is  settled  in  his  profession,  249,  329. 
to  practice  according  to  the  system  he  professes,  18,  19,  279,  329. 
who  are,  4,  19,  121,  282,  374. 
PLACENTA,  "Botanic  "  practice  in  the  management  of,  278. 
PLAINTIFF,  burden  of  proof  on,  33,  37,  222,  291,  295,  330,  526. 

must  show  that  defendant  did  not  have  skill,  or  did  not  use  it,  33, 
222,  291,  330. 
PLANE,  DOUBLE-INCLINED,  a  bad  form  of  dressing,  41  7. 
in  fracture  of  the  femur,  41 7. 
in  fracture  of  the  leg,  177  et  seq. 
PLASTER  OF  PARIS,  in  fractures,  415,  471. 
PLEADINGS,  allegations  must  be  liberally  construed,  114. 
cannot  affirm  and  deny  at  same  time,  35. 

declaration  must  correctly  state  the  contract  in  action  on   the 
case,  382. 


INDEX.  549 

PLEADINGS  —  Continued. 

evidence  must  be  consistent  with,  35. 

indefinite,  may  be  made  certain  by  amendment,  114. 

must  show  cause  of  action,  114. 

new  matter  under  Code,  198. 

sufficiency  of  evidence,  supports  a  single  count,  345. 

want  of  skill  as  well  as  negligence  must  be  specially  pleaded,  if 
relied  upon,  242. 

when  facts  are  admitted,  they  cannot  be  contradicted  bv  evi- 
dence, 34. 
PLmiBI  ACETAS,  alleged  injury  from  the  use  of,  347,  350. 
POISON,  specific,  destroyed  by  nitrate  of  silver,  272. 
POST,  on  danger  of  extension,  117,  413. 

on  shortening  after  fracture  of  the  femur,  117. 
PRACTICE,  husband,  as  such,  must  sue  for  death  of  wife,  337. 

injury  to  wife,  husband  muft  join,  202,  337. 

inspection  of  injury  resisted,  118,  304,  524. 

must  be  according  to  avowed  system,  18,  19,  279,  329. 
PRACTITIONER,  irregular,  definition  of,  282. 

regular  or  legitimate,  definition  of,  282. 

the  law  makes  no  difference  between,  4,  278,  329,  374. 
PRECEDENT,  no  responsibility  attaches  to  selection  of  one  or  another 
of  well  setiled  customs  or  precedents,  240. 

of  personal  inspection,  established,  304. 

well  established,  must  not  be  deviated  from  without  cause,  244| 
249. 
PRINCIPAL,  not  responsible  for  act  of  agent,  344, 

responsible  for  act  of  agent,  113,  291,  353. 
PROCESS,  deformity  a  common,  sequence  of  fracture  of,  415. 
PROGNOSIS  IN  FRACTURES,  421  et  seq. 

PROLAPSUS  UTERI,  supposed  to  be  remains  of  after-birth,  and  for- 
cibly removed,  276. 
PROOF,  burden  on  defendant  in  certain  cases,  199,  333,  514. 

burden  on  plaintiff,  33,  222,  291,  295,  330,  526. 

burden  in  alleged  contributory  negligence,  36,  112,  113,  512. 

diploma  best  evidence  of  reasonable  skill,  19. 

scientific,  how  obtained,  303  et  seq. 

what  constitutes  ordinary  or  reasonable  skill,  18,  41,  107, 180,  191, 
260,  295,  510. 
PUS,    physical   and  microscopical   character   of  healthy  or   laudable, 

sanious,  and  scrofulous,  318. 
PY.a:MIA,  following  fractures  into  joints,  130. 


550  INDEX. 

QUACKS,  legal  definition  of,  4. 

may  be  expelled  from  Medical  Societies,  5. 

may  be  refused  admission  into  Medical  Societies,  5. 

medical  definition  of,  1,  281. 

no  allowance  for,  in  law,  106,  188,  193. 
QUALIFICATION,  required,  by  law,  194. 

QUESTIONS,  HYPOTHETICAL,  physicians  required  to  give  testi- 
mony on,  9,  40,  142,  186, 
QUESTIONS,  LEADING,  improper,  350. 

what  constitutes,  350  et  seq. 

RADIUS,  dislocation  of,  79. 

Chelius  on  fracture  of,  164. 
fracture  of,  163,  428. 
Table  of  Fractures,  428. 
treatment  of  fractures  of,  416. 
RADIUS  AND  ULNA,  dislocation  of,  227. 

"Botanic  "  treatment  in  dislocation  of,  227  el  seq. 
Hamilton  on  backward  dislocation  of,  229,  231. 
fractures  of,  437. 
Tables  of  Fractures,  437,  439. 
treatment  of  fractures  of,  416. 
RASHNESS,  is  ignorance,  190. 

RECTUM,  alleged  malpractice  in  treating  disease  of,  334, 
REESE,  D.  M.,  on  danger  of  extension  in  fractures  associated  with 
dropsy,  117. 
on  shortening  after  fractures  of  the  femur,  117. 
REESE,  J.  J.,  case  of  alleged  malpractice,  292. 
REGULAR  PHYSICIAN,  definition  of,  282. 
RESECTION,  a  proper  remedy  in  necrosis,  87. 
RESPONSIBILITY  OF  ATTORNEYS,  77,  216,  500. 
RESPONSIBILITY  OF  SURGEONS,  degree  of,  42,  43,  103,  108, 
191,  260. 
degree  of,  same  as  that  of  lawyers,  187,  216,  500. 
does  not  warrant  cure,  43,  120,  192,  202,  209,  291,  329,  331. 
extraordinary  learning  and  skill  not  required,  42,  103,  194,  256. 

260. 
in  matters  of  doubt,  43,  209. 
must  exercise  an  enlightened  judgment,  45,  274. 
must  exercise  his  best  judgment,  43. 

must  exercise  reasonable  care,  18,  108,  138,  187,  191,  260. 
not  for  errors  of  judgment  nor  for  mistakes  in  matters  of  doubt, 
43,  209,  274. 


INDEX.  551 

EESPONSIBTLTTY   OF   SURGEONS  — Co»/r««ef7. 

not  for  negligence  only,  but  for  -what  he  holds  himself  out  to  be, 
242. 

the  greater  the  knowledge  the  greater  the  responsibility,  44. 
RETAINER,  effect  of  an  allegation  of  malpractice,  108,  193,  201,  202. 
RHEUMATISM,  common  in  fractures  and  dislocations,  80,  82. 

ST.  JOHN,  on  Plaster  of  Paris  dressing,  472. 
SAYRE,  on  Plaster  of  Paris  dressing,  473. 

on  danger  of  extension,  413. 
SAYRE' S  case  of  alleged  malpractice,  303. 

on  Plaster  of  Paris  dressing,  473-477. 
SCHOOLS  OF  MEDICINE,  not  recognized  by  law,  4,  n.,   19,  278, 

329,  374, 
SCIENCE,  facts  in,  must  be  rejected  in  certain  cases,  195. 

natural,  influence  on  the  learned  professions,  194. 
SECRET  REMEDIES,  legitimate  physicians  must  not  use,  2. 
SERVICE,  gratuitous,  does  not  release  surgeon,  193,  2G9. 
SETTING  OF  FRACTURES,  manner  of  doing,  1G2,409. 

proper  time  for,  409. 

true  theory  of,  59,  61,  162,  409. 
SHOCK,  amputation  contra-indicated  in,  131,  143,  419. 

death  from,  132. 

defined,  131. 

treatment  of,  130. 
SHORTENING,  case  of,  from  inflammatory  softening,  302. 

Ashurst  on,  in  fractures  of  the  femur,  493. 

Dorsey  on,  192. 

Hamilton  on,  in  fractures  of  the  femur,  494. 

inevitable,  in  viost  cases  of  fracture  of  femur,  117,  118,  192,  494. 

Liston  on  consecutive,  495. 

Mott  on,  in  fractures  of  femur,  117. 

method  of  detennining  amount  of,  398. 

methods  of  preventing,  410. 

necessary  sequence  in  most  cases  of  fracture,  494. 

Post  on,  in  fractures  of  the  femur,  117. 

surgeon's  duty  in,  411. 

Velpeau  on,  in  fractures  of  femur  and  tibia,  494. 
SHOULDER,  alleged  malpractice  in  the  treatment  of,  17,  225. 

Atlee  on  treatment  of  dislocations  of,  226. 

dislocation  of,  21,  225. 

dislocations  of,  apt  to  recur,  22,  227. 

Dugas,  on  diagnosis  of  dislocation  of,  404. 


552  INDEX. 

SB-OULDEB.— Continued. 

a  question  of  fact,  to  be  proved  like  any  other  fact,  503. 
a  mingled  question  of  law  and  fact,  41,  502. 
SKILL,  degree  of  required,  66,  103,  181,  187,  219,  260,  279,  503. 
defendant  may  call  witness  to  prove,  242. 
diploma  best  evidence  of,  19. 

extraordinary,  not  required,  42,  103,  194,  256,  260. 
failure  to  use,  is  negligence,  248,  342. 
general  questions  as  to,  irrelevant,  219,  226. 
highest  degree  not  required,  62,  77,  181,  187,  191,  194,  256,  260, 

328. 
in  diagnosis,  396. 
in  treatment,  406. 
is  a  question  of  law,  41. 
is  of  relative  import,  138. 

judicial  definitions  of,  32,  104,  214,  216,  243,  280,  503. 
Mansfield  on,  216. 

ordinary,  18,  41,  107,  180,  191,  260,  295,  510. 
ordinary,  standard  of,  on  the  advance,  43,  188,  194. 
physician  must  not  only  possess,  but  use,  183,  188. 
professional,  must  not  be  compared  with  mechanical,  191. 
standard  of,  on  the  advance,  43,  188,  194. 
Story  on,  32,  214,  280. 
Tyndalon,  212,  291. 
unapplied,  is  no  defence,  183,  188. 
want  of,  jury  must  decide  from  evidence,  239. 
■want  of,  not  to  be  inferred,  291. 
want  and  non-exercise  of,"  liability  for,  183,  243,  342. 
SLING,  use  of,  in  dislocations,  239,  418. 

use  of,  in  fractures,  411. 
SOFTENING,  INFLAMMATORY,  case  of,  302. 

fracture  from,  301. 
SPASMS,  in  fractures,  406. 
SPECIAL  PLEADING,  new  matter  under  the  Code  of  New  York, 

198. 
SPLINTS,  carved,  415. 

construction  of,  415  et  seq. 

double-inclined-plane,  177,  417. 

kinds  of,  415  et  seq. 

materials  for,  415. 

not  to  be  used  in  certain  cases,  168,  169,  412. 

proper  character  of,  415. 

pistol,  416. 

use  of,  158,  163,  n.,  168,  406. 


INDEX.  553 

SPRAINS,  bad  results  following,  433. 

STAPHYLOMA,  alleged  malpractice  in  the  treatment  of,  261. 

authorities  on,  261,  268. 

differs  from  leucoma,  261. 

reasons  for  operation  in,  261  et  seq. 
STATEME:S'TS,  how  far  physicians  bound  by,  284. 
STORY,  on  ordinary  diligence,  32. 

on  skill,  32,  212,  214,  280. 
SUGAR  OF  LEAD,  alleged  injury  from,  347. 
SURGEON.     (See  Physician.) 
SYNOVIA,  Carnochan  on,  316. 

chemical  and  physical  character  of,  317. 

Parker  on,  316. 

TALIPES,  following  dislocation  of  the  knee,  251. 
TESTIMONY,  proper  rebutting,  284,  285. 
TETANUS,  in  compound  dislocations  of  anklerjoint,  209. 
TIBIA,  alleged  malpractice  in  treating  fractures  of,  123  et  seq. 

fracture  of,  123. 

Table  of  Fractures  of,  449-451. 

treatment  of  fractures  of,  162,  185,  411. 
TIBIA  AND  FIBULA,  Table  of  Fractures  of,  453-463. 

treatment  of  fractures  of,  162,  185,  411. 
TINDAL,  C.X,  on  contracts,  125. 

on  responsibility  of  physicians,  212,  291,  359. 
TRAVERSE,  of  an  allegation  in  the  declaration,  125,  198. 
TREATMENT,  difficulties  in,  191,  192. 

must  be  established,  240. 

skill  in,  406. 

gratuitous,  liability  for,  193,  269. 
TRESPASS,  personal  inspection,  not  a,  304. 

ni  et  ar7nis,  190. 
TRIAL,  counter-demand  in  same  suit,  constitutes  but  one,  35. 

suit  will  not  be  dismissed  because  service  was  gratuitous,  2G9. 

ULCERATION,  in  fractures,  417. 
ULNA,  dislocation  of,  158,  166,  168. 

dislocation  of,  in  CoUes'  fracture,  168,  432. 

fractures  of,  433. 

Table  of  Fractures,  435. 
UNION,  DELAYED.  99,  400. 
UNION,  NON,  causes  of,  493,  497. 

treatment  of,  87,  99,  497. 
UTERUS,  prolapsus  of  taken  for  remains  of  placenta  and  removed,  276. 


554  INDEX. 

VACCINATION,  alleged  malpractice  in,  344. 

duty  of  physician  in,  346. 

erysipelas  after,  346. 
VACCINE  VIRUS,  precautions  in  preserving,  346. 
VAN  BUPvEN,  on  puncture  of  hip-joint,  314. 
VAN  WAGEXEN'S   Fracture  Table,  479-489. 
VEIN,  BASILIC,  290. 

VELPEAU,  on  shortening  after  fractures,  494. 
VENESECTION,  alleged  malpractice  in  the  operation  of,  289. 
VERDICTS,  influenced  by  sympathy  for  plaintiff,  260. 

manifestly  against  evidence,  will  be  set  aside,  180,  261. 

must  agree  with  evidence,  296. 

reasons  Tvhy  they  should  not  be  set  aside,  185. 

set  aside  for  cause,  180,  224,  261. 

set  asiJe  for  excess  of  damages,  '258. 

set  aside  for  improper  conduct  of  jury,  224. 

what  defects  cured  by,  383. 

■will  not  be  disturbed  because  of  discovery  of  new  evidence,  257. 

will  not  be  set  a^ide  wlien  two  juries  find  same  way,  unless  man- 
ifestly contrary  to  the  evidence,  180. 
VISITS,  frequency  of,  109. 

WARRANTY  TO  CURE,  not  implied  by  law,  32,  43,  121,  192,  201, 

212,  291,  329,  331. 
WHITLOW.     (See  Felon.) 
WILLS'  HOSPITAL,  261. 

WITNESS,  to  be  impeached  only  by  general  questions,  342. 
to  testify  only  to  facts,  37. 

(See  Expert.)  • 

WOMB.     (See  Uterus.) 
WOOD,  on  initial  bandage,  49, 

on  injuries  to  elbow- joint,  49. 
WOUNDS,  closing  of  in  compound  fractures,  131.  .     . 

maggots  in,  1  70. 
WRIST-JOINT,  alleged  malpractice  in  the  treatment  of  injuries  near, 
76. 
anchylosis  of,'82. 
supposed  dislocation  of,  432. 
WRONG,  no  advantage  to  be  taken  of  one's  own,  36,  71,  112,  193,  395, 
510. 


DATE  DUE 


^^vpv 


^1^ 


^ 


t:^ 


k 


2_D 


;^T 


V 


^ 


f^ 


r 


xf 


7 


« 


o^aai  jUUltftftl 


ort^- 


»S26  2(fl^-sa^ 


t4^m 


DEMCO  38-296 


COLUMBIA  UNIVERSITY  LIBRARIES 


0041062914 


McClelland 

Civil  malpractice. 


RA1056.5 
MI3 

1877 


Ai 


